I wonder if we can think of any practical to measures arrest the spread of "open source" terminology and associated superficial ideas in government circles?
The terminology that the law ought to use, while referring to software that negates the contituents of proprietary software is both interesting and important at this juncture.
If governments use the expression "free software" fully understanding the philosophy of the free software movement, this discussion will be redundant. However, our open source friends are good at promoting free software, and now the stage has come when governments have started taking a serious interest in free software as it is of proven quality, open, saves costs, full of freedom desired by all interested in good governance. Since some governments use "open source" terminology, this discussion assumes importance. We have a duty to bring to the notice of governments which use "open source" terminology, the history of the free software movement, and the legal issues involved. The following is a very brief outline, that may be read along with the previous postings touching on this subject.
According to the OED, "proprietary" means rights held in private ownership. Initially, only private individuals and entities created software and owned the rights in it. RMS wished to create software that will be free from this kind of private ownership. Free software was therefore a deliberate and intentional movement intended to negate the restrictions and hardships caused by private ownership of software. Now, the issue is: what would be the best expression in law to convey the idea that such software is free from restrictions imposed by private owners? RMS rightly called it "free software" from the time of its very inception. The chief ingredient of Free Software is that it is free from the oppressive and unscientific restrictions imposed by private ownership.
The rights in respect of software are chiefly governed by copyright law. As soon as a person writes a software, by law he is vested with copyright over his software, regardless whether it is registered under a Copyright Act. By default all software are proprietary having an identifiable author in whom copyright for the work will vest. Usually, free software produced under the GNU Project is released from private ownership under the terms of the GNU General Public License.
The Open Source Initiative started in 1998, chiefly by Eric Raymond, a hacker guru, argued that free software should be labelled as "open source" software. The initiative, has been successful in promoting the interests of free software, but it has also resulted in an acrimonious debate within the community about the logical classification to be adopted while describing software. The classification now competing for attention are:
{free | proprietary} software -vs- {open | closed/secret } source software
Fundamentally, Copyright law deals with the ownership and transfer of copyrights, and therefore software licences should be classified for the purposes of law only as free or proprietary. Please study the following:
1. Classification of Software Licences in law:
software licences +-----------------+-----------------+ | | free proprietary
2. Table of Rights/Properties distinguishing the two classes:
--------------------+--------------------+----------------------------- Right/Property Free Software Proprietary Software --------------------+--------------------+----------------------------- Part A: Rights/ingredients of Licence covered by Copyright Law Copying Free Restricted by/to Proprietor Redistribution Free Restricted Exhibition Free Restricted Installation Free Restricted Assignment Free Restricted Modification Free subject to Restricted making the modified version free as source Sale Free Restricted Hire Assignment itself Restricted Free Trading Free Restricted Importing Free Restricted Subsequent ownership Free Restricted
Part B: Properties/ingredients not covered by Copyright Law: Avaliability of Free and Open Could be open or closed/secret Source Code Price Free Fancy prices/Cost if Honest /sometimes free for n days, x persons etc /minor software given free as a marketing tool but a whole workable system is never free Development Model Free and Open Restricted and Closed Prone to Virus Well Protected Weakly vulnerable Quality Unmatched ? Growth Potential High ? Documentation Free Restricted
In short: sharing Free Restricted --------------------+--------------------+-----------------------------
Please note the division of the above table into Part A, covering ingredients covered by Copyright Law and those that are not under Part B. Strictly speaking, the Copyright law does not look at the element of "price" or availability of "source code" at all. Open/Closed source classification further cannot clarify the question of ownership. To use such criteria to classify software licenses would therefore be inappropriate. Songs, movies, and other literary works are "open" and there is nothing secret about a song or literary works in the way, software could have public object code and secretable source code. Even if source code is revealed, the proprietary software could still say that under the terms of licence, it may not be copied or shared. Open/Closed source classification is therefore not appropriate. But we can say free software inherently has the quality of being open source, owing to the very nature of how free software is created and used. In other words, free software is a parent class, and being open souce is just one of its properties, or qualites.
Right from its inception, the expression Free Software has meant a negation of all that constituted proprietary software. Software can therefore be intelligibly classified only as free or proprietary, where each class clearly and fully negates the other, for purposes of law. Further, this would be in consonance with the legal traditions of examining words in their historical context and setting.
This is good news for our "open source" friends. Since the Open Source Initiative web site openly admits that they are marketing free software, obviously they are merely highlighting one aspect of free software: that its source is always open. Since they are using "open source" label openly as a sales pitch for marketing free software, they can happily continue with the same. However, when it comes to government, they can easily see the reason why law can deal only with free or proprietary software.
But it would be ideal if all of us including the law, media, hackers, users and govenments uniformly use the expression "free software" everywhere, to maintain clarity and stand closer to truth.
Regards, K. Ramanraj.