Licensing Open Source Software

Disclaimer: I am not a lawyer.

I have recently been approached by several people with regards to the licensing of open source software (OSS). Proprietary companies have no problems stealing open source software for their use but when it comes their turn to sell their solutions, they try to get away with hiding the OSS. This is not only wrong but is actually illegal.

I have been personally told to breach the GPL and I have pretty much told my boss – over my dead body. Just because it is an instruction from the top does not absolve me of the action. I will still be the one responsible for installing DRM onto our GPL derived product.

I have come to realise that most people have many misconceptions on OSS because they tend to lump all OSS together in one homogeneous fold. Unfortunately, there are over 60 different OSI approved open source licenses at the time of writing and they are as heterogeneous as can be. However, they all have exactly one thing in common and one thing only.

I need to make this one thing very clear – OSS licenses are all distribution licenses – they only come into effect when you decide to give away your product whether paid or otherwise.

On one extreme, you have the extremely permissive OSS licenses such as BSD and gang. What this license essentially means is that you are pretty much free to do whatever you want with it, including using it in commercial products without giving away your source code. However, you will need to mention in your product and documentation that you are using the BSD code and that the original authors are exempt from all liabilities.

This is one of the easiest OSS licenses to use in proprietary products. Just take the code, do what you need with it and then sell it. All you need to do is to mention that you have used that code and promise that you will never sue the original authors. That’s it!

On the other extreme, you have the extremely viral OSS licenses such as GPL and gang. This is the license that Steve Balmer calls a cancer because it is infectious. It is very clear in the language that any software that contains GPL code must be at least as free as the GPL and no distribution rights can be taken away from the customers.

This essentially means that if you use GPL code in your product, you cannot do anything that will prevent your customers from using that code in whatever way that they like. GPL3 has very specific language that nullifies patents and attacks digital rights management. In fact, you cannot even stop your customer from reselling your product ad verbatim if they want to.

One misconception that most people in Malaysia have is that OSS is a development license – meaning that if they do not make changes to the original code or develop it, there is no need to open source it. This is only true for LGPL and gang, which require all changes, modifications and additions to the original code to be given away as LGPL. However, it is untrue for either of the previous extremes.

The trouble with most proprietary businesses in Malaysia is that they do not comprehend OSS. OSS licences do not prohibit you from charging money for your products. In fact, you are encouraged to charge money for it so that you have clear proof of distribution, which means that the OSS license can be clearly enforced. You will find open source companies worth billions of dollars amongst the Fortune 500.

Professionally, I always recommend that my clients stay away from GPL code unless they know exactly what they want to do with their products. There is nothing wrong with GPL except that staying away from it gives us flexibility to decide on whether or not to distribute our source code later – once there is a clear business case for it either way.

I was recently told by a colleague that he was informed by legal that we should give away our GPL derived code but practically, we would not need to. That is the kind of legal-doublespeak that makes me hate lawyers.

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Published by

Shawn Tan

Chip Doctor, Chartered Engineer, Entrepreneur, Law Graduate.

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