This document and the associated course do not constitute legal advice. None of the information given is intended to be interpreted as legal guidance and/or legally binding.

If you require legal advice you should consult a qualified legal expert.

Free Software Foundation Europe does not give legal advice and does not provide legal services to individuals, projects or businesses. However, we do maintain an informal legal network and we might be able to suggest qualified legal advisers in your country of origin and business.

The course we are about to begin is intended to run through most of the topical areas of Free Software licensing and to address common questions that arise. While we cannot promise to address all of your questions inside the structure of this course itself, please don't hesitate to ask questions and introduce new topics of conversation.

If you look through this booklet you will notice that all of the primary topic areas are awaiting your input. We are going to foster conversation around the issues presented and work to ensure that everyone comes away with a clear idea of what Free Software can mean in the context of their business, project or area of interest.

Free Software is not a difficult field. It is simply one that requires a little immersion to facilitate full understanding.

What will you get from this course?

This course will explain the types of licence used in the Free Software arena. It will examine the legal questions involved in projects with multiple participants, describing what possibilities and dangers exist in mixing code from different sources. We will cover dual-licensing models, where code is released both freely for community use and in a closed propriety form for specific markets, and best-practice models for developers and projects that adopt Free Software. In addition to this, we will examine how Free Software licensing can be used to produce commercial products within the context of existing business models.

What is the target group of this course?

The course is of benefit to developers, technicians project managers and coordinators who wish to become more knowledgeable regarding code distribution options.

What previous knowledge is required?

Some knowledge of software development would be useful but is not required. We will introduce and explain the concepts used at each stage.

Intro: Perspectives

What is Free Software?

Free Software is a pretty simple concept. Free Software is software that you can:

• Use

• Study

• Share

• Improve

Software that does not give users these permissions is called “Non-Free Software” or “proprietary software”. The latter name is a reference to the software existing to benefit the proprietor.

How is Free Software different to proprietary software?

You might be able to use proprietary software, but it is fairly certain you will not be able to modify, share and improve it. The licence applying to proprietary software does not provide that type of grant.

Can businesses use Free Software?

Yes. Businesses can use Free Software according to the terms of its licence.

Can products be created using Free Software?

Yes. You can sell software products that contain Free Software. You just have to ensure you follow the terms of the licence.

Case studies: applications

Some well known Free Software:

• GNU/Linux operating system

• Mozilla Firefox

• OpenOffice.org

• Apache web server

Free Software is used in quite a lot of ICT services. Indeed, a lot of the software infrastructure of the Internet is Free Software.

Case studies: embedded devices

Embedded devices are everywhere. Phones, wireless routers, cars.

A lot of embedded devices use Free Software. For example, many use the GNU/Linux operating system. GNU/Linux is very powerful software that you can also find on massive mainframes, super computers and desktops.

Terminology

The operating system shipped by Debian, Red Hat, Ubuntu, Mandriva, etc. are a combination of the GNU operating system, the Linux kernel, and other third party software. We call these systems “GNU/Linux”. Some people call them “Linux”, but this misrepresents the operating system. Whichever term you use, the important issue is that they refer to the same operating system.

Similarly, while “Free Software” is the original, and in out opinion best, name for the topic of this course, some people call it “open-source software”. We ask people to prefer the original term, but again, contrary to the controversies that some journalists publish, these are two names for practically the same thing.

Richard Stallman, founder of Free Software Foundation:

“Nearly all open source software is free software; the two terms describe almost the same category of software.”

Bruce Perens, co-founder of Open Source Initiative:

“My intent has always been for Open Source to simply be another way of talking about Free Software”

Status of Free Software usage

Who uses Free Software?

The New York Stock Exchange run their mission critical system on GNU/Linux.

NASA have been sending Free Software into space since 1990.

Google – their data centres and web servers.

Wikipedia – the world's 8^th most visited website uses 100% Free Software.

The City of Munich's 14,000 desktop computers.

The French Parliament, the French Police.

You?

Who has Free Software based revenue models?

Red Hat

IBM

Sun Microsystems

MySQL

Trolltech

Computer distributors such as Dell, HP, Lenovo, Asus.

Copyleft – the share-alike licences

What types of licence exist?

The common ground of all Free Software licences is that they allow the recipient to use, share, modify and improve the software. The biggest differentiator between Free Software licences is whether or not they have a share-alike clause, called “Copyleft”.

How does Copyleft work?

No Free Software licence requires you to share your software. If you want to keep your software to yourself, that's fine. However, if you chose to share your software, Copyleft licences require you to give the recipients all the rights that you got when you received the software.

What licences use Copyleft?

Quite a few licences use a Copyleft provision including the most widely used Free Software licence, the GNU GPL.

How can Copyleft be applied to projects?

A project simply has to adopt a Copyleft Free Software licence and distribute code under its terms.

Can that be compatible with business?

Copyleft projects attract significantly more commercial contribution and support than non-Copyleft projects. This benefits businesses as well as other stakeholders.

Why is that?

The key value proposition in the ICT field lies in the combination of technology, brand recognition and support provided by a product vendor. Copyleft does not compromise this proposition.

With non-Copyleft Free Software project, each contributing company can keep their improvement proprietary. Thinking on in an individual way, it doesn't make sense for any of them to.

Case study: GNU/Linux and the BSD derivatives

FreeBSD is an operating system that is similar to GNU/Linux. The technical aspects of the two systems are roughly equal. One difference is that FreeBSD does not use a Copyleft licence. Their licence gives you the code and puts no requirements on you to publish your changes. Thus, their licence allows companies to apply the business models of the 80s and 90s i.e. they can add features, and they will be the only company with that feature, and they can charge per copy.

From time to time, companies have invested in FreeBSD, but each company keeps all or most of their improvements proprietary. The FreeBSD operating system does not benefit from all the improvements. Companies don't want to put their code under the permissive licence because they know that their competitors could add a further feature and not contribute that back, and then they would be competing against their own work.

With Copyleft licences, everyone has to play fair. No company can exploit the code in a way that others cannot equally exploit it. Thus companies feel secure in contributing their code and the software benefits from each contributor.

For users, this is a big win because instead of having multiple options of exclusive feature sets, they get to use the combination of all added features.

Case study: Licence switching

Not only did GNU GPL'd projects flourish, but we have also seen projects which originally wrote their own licences but which are later switching to the GNU GPL. The Mozilla web-browser suite and the Qt toolkit are two examples.

Business adoption

How can Free Software licensing fit into your business model?

Free Software can help your project or company benefit from an already substantial and continually growing ICT code base. As long as your business model is adapted to take into account licensing expectations and a small amount of retraining for key personnel, Free Software is likely to boost your overall value proposition.

How can products be differentiated from their code?

By the realisation that products are a package consisting of features, support and the trust associated with the brand of distribution.

Does Free Software mean free products?

No. You can sell products made with Free Software.

How can Free Software be sold?

The terms of Free Software licences apply to the distribution of Free Software products. These terms do not include any provisions that insist on distribution for zero cost. Many companies sell Free Software. Red Hat is a good example.

Approval flow diagram

Project management

How are Free Software projects different to proprietary projects?

Free Software projects are build on the development and QA work of multiple parties. Proprietary products build on closed platforms are developed by one or few vendors.

How can communities be combined with project coherency?

Free Software is frequently developed by 'communities' of programmers, users, designers and debugging volunteers. The question often arises about how to ensure that these communities do not lead to commercial product fragmentation.

However, a community helps to develop a product. It does not mean that the product itself or its development and release roadmap is fragmented.

How can a project avoid legal problems?

By following 'best practice' processes developed by leading Free Software projects like KDE, GNOME, Debian and Red Hat's Fedora.

Licensing choices

How can you choose the right Free Software licence?

You need to define precisely what your project or product goals are, what your project or company expectations are, and to take into consideration the current and emerging market norms.

How can you apply a Free Software licence to your project?

If you are starting a project from scratch, you can simply select any licence you wish and apply it to your new code. The licence itself will explain how to do this.

If you are using someone else's code as the basis for your project, you need to ensure that you do not contravene the terms of their licence by attempting to apply incompatible terms to your finished project.

Dual licensing

What is dual-licensing?

Dual-licensing refers to a model where code is distributed under two different (and potentially incompatible) sets of conditions.

How can dual-licensing benefit a project?

Dual-licensing can allow a project to benefit from two different types of value proposition at the same time.

What problems are associated with dual-licensing?

Dual-licensing is frequently frowned on by Free Software developers, and it also introduces the potential for confusion on the part of customers wishing to use a product.

When should you choose dual-licensing?

This depends entirely on your project, product and expectations.

Case study: MySQL

MySQL is both the name of a company and of the database technology the MySQL company delivers to the marketplace. MySQL database products are available under the terms of the GNU GPL licence or a proprietary licence.

The advantage of this model is that MySQL benefits from some external development and QA potential, which the disadvantage is that many potential developers are alienated by the thought of the MySQL company distributing code under proprietary terms.

Case study: QT

QT is a windowing and development framework for graphical applications. It forms the basis of the popular KDE Free Software desktop. This framework is available under the terms of the GNU GPL and under proprietary licensing terms.

The advantages and disadvantages faced by Trolltech, the originators of the QT platform, are similar to MySQL.

Consolidation / copyright assignment

One thing that can help with legal maintainability is something called copyright assignment. Because Free Software is often developed by large groups of people ranging from individuals to organisations, the copyright holders of a code base can become fragmented, making it hard to maintain the code base in legal terms.

Copyright consolidation helps resolve this. Even the issue of different legal systems in different countries (like common and civil law) can be overcome with suitably drafted assignment documents.

How can you manage copyright assignment?

As with all issues concerning rights and the transfer of rights, you would be well advised to seek legal counsel.

Copyright assignment documents are available relatively freely on the Internet. For instance, FSFE has a copyright assignment document called the 'Fiduciary Licence Agreement' or FLA. This is a copyright assignment designed to explicitly work in common and civil legal systems.

How can a project ensure legal maintainability?

Having many participants in a project potentially increases the chance of legal maintainability problems. Projects can reduce these risks by maintaining clear copyright attribution and having clear policies for contributions, trademarks and associated areas of development process and branding. It is also worth considering copyright consolidation in certain situations.

Trademarks and commercialisation

How can value be built using a brand?

The value proposition of modern ICT products lies in a combination of the technology, brand and associated support services. A good brand encompasses the user interaction with a technological solution.

Case study: Red Hat Enterprise Linux

The Red Hat value proposition lies in providing enterprise operating systems and full-stack solutions with high quality support services.

People do not buy Red Hat solutions because of the functionality. They buy Red Hat solutions because the functionality delivered comes with enterprise quality support.

Case study: Mozilla Firefox

Mozilla Firefox is a serious competitor to Microsoft's Internet Explorer. Mozilla deliver their product for free (as in price) to end users, while deriving profit from lucrative search content delivery deals with Google. Thus Mozilla leverage their brand as a quality product with zero cost to users while they leverage their user-base as a value proposition for Google service delivery.

How can trademarks be used to ensure coherent branding?

Brand value is a key element of the modern ICT business market. Trademarks allow for visible branding on ICT products. By ensuring that you maintain a clear separation between your brand (protected by trademark) and your Free Software code (protected and shared by copyright), you can ensure that you benefit from community development while maintaining a unique value proposition.

How can Free Software licences and trademarks work together?

They do not have to overlap or create a conflict. Free Software licences are copyright law documents. A trademark is a mark consisting of words and/or symbols that represent a business or single product. Products like Mozilla Firefox and Red Hat Enterprise Server use Free Software code to deliver features, and trademark-protected brands to deliver unique identification. A good trademark policy can ensure that all interested parties feel comfortable with this.

Adoption and transition

What are the advantages of Free Software licensing?

Free Software allows projects and businesses to benefit from the widest possible amount of technologies and advancements in a fair and non-restrictive way.

What are the problems associated with Free Software licensing?

Sometimes people assume that Free Software code can be used as if it were in the public domain. However, Free Software is licensed and it is important to ensure that your project meets the terms of the licences under which your adopted code is distributed.

Case studies: Projects like the Linux kernel

The Linux kernel started in 1991 as a project by a Finnish university student. It has become one of the leading operating system kernels in the server marketplace, and is increasingly used on workstations and desktops as the basis of the GNU/Linux operating system.

There have been some licensing maintainability issues with Linux due to a combination of its massively distributed development and some licensing decisions taken early in the project life-cycle.

Case studies: Projects like Java

Java is a programming language created by Sun Microsystems. It is exceptionally popular and powers virtually every mobile device on the market as well as a substantial proportion of web services.

Sun Microsystems has decided to release the Java platform as Free Software under the terms of the GNU GPL licence. This is a good example of a market-leading product transitioning from proprietary to Free Software.

FSFE and FTF

Where can you go for more information?

There is a great deal of information about Free Software available on the Internet.

For general information about Free Software you might want to consider visiting the Free Software Foundation Europe website. It's available in many European languages:

http://www.fsfeurope.org

For licensing specific information about Free Software you might want to consider visiting the Freedom Task Force website:

http://www.fsfeurope.org/ftf

You can also find useful information at the following websites:

http://www.fsf.org

http://www.fsf.org/licensing

Where can you go for help?

The Freedom Task Force can help. We have an informal network of legal experts throughout Europe that currently covers most EU member states plus many East Asian countries, the USA and Australia.

You can contact the FTF through our website or email:

http://www.fsfeurope.org/ftf

ftf@fsfeurope.org