What’s the FOSS about software licences?

16 November 2015

Free and Open Source Software (FOSS) is becoming widely used by developers and engineers alike. Broadly speaking, in order to be FOSS, software will be freely distributed for anyone to view, use, copy or change, with at least a right of access to the source code. ‘Free’ here means ‘freedom’ as opposed to ‘without financial cost’, although FOSS is often financially free as well.

By way of an example of the benefits of FOSS, let’s say you are interested in designing a thermostat that can be controlled over the internet – perhaps having been inspired by the Nest Learning Thermostat, or the stir created by Google’s purchase of Nest Labs, the home automation company that developed the Nest Learning Thermostat, for an impressive $3.2 billion back in January 2014.

As you are not the first person to have this idea, it may save you time to consider if people who have worked on similar projects have made their code - be that a whole project or code enabling some specific functionality - available as FOSS. A good starting point may be Nest Labs itself, which used FOSS in developing its product. In order to comply with FOSS licences, portions of the code underlying the thermometer is available, under FOSS terms, on their website https://nest.com/legal/compliance/.

It is worth considering the licences applied to the code. For example, some licences are relatively permissive, making few demands on a developer wishing to use the code.  Such licences may include clauses requiring a restatement of any licence terms in the original software, or requiring attribution of the source. The MIT licence, Berkeley Software Distribution (BSD) and Apache licences are examples of such relatively permissive licences. Other licences, sometimes termed ‘copyleft’ or ‘viral’ licences, require that all software, even if you have added to or modified it, must be made publicly available, usually under the same licence terms. 

Once you have selected your code, it is advisable to make a list of your sources so you can ensure you fulfil all obligations.

Using FOSS is not without risk. For a start, FOSS generally comes with no warranties: not only will you have no guarantee that it is functional or useful, you also have no guarantee the publically available code is itself free of copyright infringing material, or that you could use the code without the risk of patent infringement. After all, a patent could belong to a party entirely unconnected to the code contributors.

You should also consider your own intellectual property. The protectionist nature of patents, for example, and the requirement to maintain confidentiality of an invention before filing a patent are philosophically hard to square with some of the principles behind the liberal, collaborative FOSS community. Further, there is a (debatable) suggestion that a contributor to a FOSS project at least implicitly licences related patented technology.  Some FOSS licences make specific mention of patent rights in the licence terms. Enforcing of a related patent by a party who has contributed to a FOSS project may therefore bear the risk of additional uncertainty and the prospect of reputational damage, and the use of FOSS may be inappropriate for these reasons.

While the above examples discuss modifying existing code, it is worth considering if any original code you have developed should be made open source. There can be considerable benefits: the FOSS community may provide improvements and manpower beyond anything you could provide alone, and opening up your code may allow complementary products to be developed, potentially both boosting the appeal of and advertising your product. 

Practical tips on using FOSS:

  • Do you want your modified code to be confidential?  If so, avoid “copyleft” licensed FOSS such as GPL
  • Consider the reputation of the source. 
  • Has the code has been discussed and implemented by others?  Is it taken from a popular and currently active software project? If so, the open source community is helping you with quality control and debugging (albeit without any warranty).
  • Once you have chosen FOSS code, note the source.
  • Bear in mind there may be other rights, such as patents, which could prove a barrier to commercialisation.
Caroline Day

Caroline Day

Partner

Our Expert
Caroline Day
Caroline Day
Location: Bristol (UK)

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