Among software user licenses, open source licenses assume a historical role in the evolution of computer programs. A recent ruling by the Court of Milan (No. 7112/2023) allows us to look at so-called “BSD licenses” and the clauses that characterize them, ruling on the consequences of not implementing the “advertising clause”.
In recent decades, software development has been decisively shaped by the more or less “liberal” or restrictive nature of software licenses. Over time, several software licensing models have emerged, characterized by the varying degree of “permissiveness”: among the most relevant are the “BSD” (more open) and “GPL” (more protectionist) licenses.
The “free circulation” of computer programs began to gain increasing attention (and supporters) especially since the 1980s, at the stage when software was "leaving" universities and entering the corporate world. From sharing scientific research to competing in markets, particularly through the institutions of industrial and intellectual property. And thus, in the case of software, of copyright protection. As is well known, in fact, these fall within the group of works protected by the Italian Copyright Law (L.d.a.), being assimilated to literary works (art.1, c.2 L.d.a.). Therefore, consistent with copyright law, even in the case of software it is the expressive form of the computer program that is protected and not the functions underlying it Art. 2, no. 8 of the same law, in particular, states that computer programs are protected “in any form expressed, provided that they are original as a result of the author's intellectual creation”.
Source code and object code
It is precisely the understanding of the form of software that turns out to be essential in the dialectic between freedom of circulation of programs and protection of corporate assets (or in general of the owner's exclusivity). In essence, "what" is being licensed when it comes to software licensing? To grasp this, one must distinguish between (i) source code and (ii) object code. The former refers to the code by which the program is written in a programming language, which enables its eventual processing or development; object code, on the other hand, consists of the translation of the source code into machine language, understandable only to the processor and generated automatically by a special program called a compiler. In fact, the programmer has to carry out a real translation: he analyzes a problem to be solved, identifies a solution, and chooses a form of expression (a set of instructions) that enables the computer to solve the problem.
The licensing of open source software
The main form of software circulation, therefore, is the user license, through which the mere right to use the program may be granted to the licensee. Of course, licensing agreements can vary widely, both because they may relate to customized programs, tailored to customers, or perhaps with specific limitations placed to protect the licensor, and because there are, upstream, different licensing "models." In addition to the classic distinctions involving licensing agreements in general (exclusive or non-exclusive license), one can distinguish specifically different types of software licenses (freeware, shareware, shrink-wrap...) among which we will focus in particular on open source
The essential trait of open source consists precisely in its nature as an "open" system: the source code, as defined above, is made accessible, modifiable, extendable by the licensee, making it possible for anyone to contribute to its evolution. The most famous example is "Linux distributions."
The 4-clause BSD License (and its sisters)
Among the "permissive" licenses, the "BSD" license has recently been the subject of an interesting controversy, defined by a ruling by the Court of Milan business section. Before reporting the most relevant aspects of the litigation, let's see what it is all about. The acronym "BSD" stands for "Berkeley Software Distribution" and constitutes a particularly "liberal" open source software license, granting licensees the ability to use, modify and even distribute software by very wide margins. More correctly, the "BSD license" should be framed as a family of licenses, specifically defined then by the different clauses (generally typified as "BSD 4 clauses" (or "FreeBSD"), 3 clauses (or "modified") and 2 clauses ("simplified").
The 4 clauses that go into "FreeBSD" typically consist of: i) copyright notice ("redistributions of source code must maintain the copyright disclaimer"; ii) a clause on binary redistributions that: "must reproduce the above copyright notice, this list of conditions, and the following disclaimer in the documentation," guaranteeing free use and redistribution rights; iii) an "advertising" clause under which any publicity material involving the software must mention the developers; iv) an additional clause under which the licensor's name may not be used to promote products derived from the software without permission. Clause (iii) does not appear in typical “3-clause BSD licenses”, which was adopted by many projects, including the OpenBSD operating system, and has since become the most widely used version of the license, while the 2-clause BSD license simplifies things further by removing clauses (iii) and (iv).
The dispute covered by Judgment No. 7112/2023 of the Court of Milan
In a nutshell, Mr. AC, the pro tempore representative of the company Gestionale Open s.r.l., had created a management software, called Gestionale Open (with acronym GO), released under an Open Source BSD license and made available to all those interested in its use. While this software was also distributed and downloadable under an "open" mode (i.e., freely and without license fees), the company provided service contracts with direct customers (SMEs) or with third-party service providers for the use of GO. Depending on the type and need of the customer, these contracts were for maintenance, upgrades to new versions, customizations and, in general, support services (direct, telephone or tele-assistance). Software implementations, enriched with new features, were taking place in a non-Open Source mode
The plaintiffs, already in the ante causam precautionary proceedings had deduced against the defendant companies, on the one hand, infringement of software versions not released in open source mode, and on the other hand, infringement of GO Open Source software for non-compliance with BSD license conditions, as well as, in general, an imitative and seriously parasitic activity carried out through various forms. In the desicsion, the BSD "4-clause" license, and in particular the most characterizing clause: the "advertising" clause, is of particular importance.
The violation of the “advertising clause”
The Court of Milan has, in fact, found, among the various aspects in dispute, that "in the advertising material disseminated by the defendants relating to the characteristics or use of the software, the statement attributable to clause 3 of the BSD license (namely: 'This product includes software developed by [omissis]) was missing." Net of the other profiles of unlawfulness, for the Court of Milan "this therefore determines the existence of the violations relating to the undue dissemination of such software." In fact, the failure to implement the specific conditions set forth in the BSD license entails the inapplicability of the license that authorized its use and dissemination - as well as the possibility of modifying and processing it - with the consequent relevance of the copyright regime on software provided for in Articles 64 bis et seq. of the L.d.a. And therefore of the exclusive rights of the owner, confirming the crucial role of such licenses in the dialectical relationship between copyright protection and ease of circulation of software.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.