Copyright is a unique animal among the various types of intellectual property. Usually, copyright vests in a work as soon as it is created, and registration of a copyright is not mandatory to obtain some form of legal protection. It is this aspect of copyright that gives rise to various types of copyleft and permissive licenses of copyrighted works, because it gives the creator of a work rights over their work immediately upon creation. We have previously covered the concept of copyleft  as well as the Creative Commons, a specific form of copyleft protection. In this post, we’ll be examining the concepts of free and open-source software, and the copyright regulations associated with works licensed under these principles.

What is free software? 

At the outset, it’s important to clarify that the term “free” is used in the context of freedom, not in terms of price. This is why free software is often also referred to as libre software, in order to remove any ambiguity about the meaning of the word free. For the purposes of this post, we’ll be using the term free in the context of freedom, unless specifically mentioned otherwise.

Broadly speaking, for software to qualify as free software, it must grant its users four specific freedoms:

  1. The freedom to run the program, for any purposes.
  2. The freedom to study how the program works and change it to suit your specific requirements.
  3. The freedom to redistribute copies.
  4. The freedom to distribute copies of your modified versions of the program to others (freedom 3).

These four freedoms were conceptualized by Richard Stallman, the key figure behind the Free Software Foundation (the “FSF”, who created and maintain the GNU public license, one of the most popular free software licenses). For a program to be considered ‘free software’, it must grant its users all four of the above freedoms.

An important point to keep in mind is that because free software refers to freedom, rights holders are not barred from charging for their free software. In fact, the FSF encourages users to charge whatever they feel is appropriate.

Difference between free and open-source software

In common parlance, the terms “free software” and “open-source software” are often used interchangeably, and the term FOSS [Free and Open Source Software] has gained a lot of traction in recent years. However, there is a subtle distinction between the two. For clarity, open-source software refers to software whose source code is open to the public to view and modify [thereby satisfying condition 2 as mentioned above]. Free software is open-source software by definition. However, open source software does not necessarily have to be free. Simply because a user may view the underlying source code in a program, it does not automatically mean that they have the freedom to modify, distribute, or incorporate that code into another product as they wish. Such rights [freedoms, one could say] would depend on the terms under which that code is licensed. While the software community tends to view the distinction between free and open source software as a question of code quality (which the open-source movement tends to focus on) versus user rights (the focus of the free software movement), this context is also incredibly important from a legal perspective in terms of copyright protection, particularly in terms of licensing your product, or building a software product that uses an “open-source” component.

From a practical perspective, the open-source movement gained traction by focussing on security, transparency, and cost reductions – a move that allowed it to carve out a space for itself in the corporate world. Modern civilization is built on the back of open-source software– whether it is the underlying Linux code that runs over 90% of the world’s servers, or the Android operating system that powers 75% of the world’s smartphones. However, simply because you can view its source code, it is not free software. To qualify as free, it should also allow you to modify and distribute derivatives of the program (even if you charge for it).

Licensing conditions and types of licenses

Generally, any software which is either open-source or free software (as opposed to being proprietary), is licensed in two ways– either through copyleft licenses or permissive licenses. As mentioned earlier, we’ve covered what copyleft is in previous posts. A permissive license on the other hand, broadly speaking, is a license that guarantees that a work is free (as per the four conditions above), with minimal restrictions. They are often referred to as ‘Anything Goes’ licenses due to the very loose restrictions– often simply just requiring that a copy of the license be distributed along with any work.

For software works; some of the most common open-source licenses are mentioned below– along with whether they are copyleft or permissive licenses.

  1. The GNU Public License (“GPL”): This is the most popular open source license and is a strong copyleft license. It also has a variant for SaaS programs called the Affero GPL.
  2. Mozilla Public License (“MPL”): Developed by the Mozilla Foundation (the makers of the popular Firefox browser), this is a weak copyleft license that attempts to bridge the gap between strong copyleft (like the above-mentioned GPL) and permissive licenses like BSD or Apache.
  3. Common Development and Distribution License (CDDL): Developed by Sun Microsystems based on the MPL, this is a weak copyleft license that requires disclosure of the source code of only the components that are licensed under it.
  4. Eclipse Public License: Another weak copyleft license that aims to balance commercial interests with ethical concerns over user rights.
  5. The Berkeley Software Distribution (“BSD”): This is an extremely permissive license and is one of the earliest open-source licenses.
  6. MIT License: This is another extremely permissive license, only requiring that the copyright notice and a copy of the license be included in any distributions.
  7. Apache: A modern license which has gained popularity due to its wide permissiveness and corporate-friendly approach.

The choice of license for your product is dependent on a number of factors, such as your target audience, intended purpose of the software, and whether you have used somebody else’s free code in your product. We’ll be covering some of the above-mentioned licenses and examining their implications, in subsequent posts.

Reach out to us at Selvam and Selvam to understand what sort of license would be most suitable for your product, or for any other copyright-related queries you might have.

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