Open Source Software – The Case For And Against

Open source software seems to have attracted significant press coverage in recent months. On the one hand, the media interest has focussed on SCO’s claim against IBM for approximately US$3 billion on the basis of allegations that SCO’s intellectual property rights have been infringed by the inclusion of its proprietary Unix product in IBM’s development of Linux. As against this, there has been favourable press coverage about key organisations moving away from established software providers, such as Microsoft, to use open source software.

For instance, Munich council and, just last month, Bergen council in Norway, announced a move to open source software. Also, some UK councils, such as Newham Council, are also piloting open source software. Given that use of open source software is now more prevalent, any organisation using technology should be aware of the issues relating to open source software. In this context, this article looks at what it is as well as the relative merits of using it.

There is no universally accepted definition of open source software and it is not a term rooted in statute or common law. Instead, the concept has evolved from principles enunciated by those who believe that software should be free as in "free speech not free beer" (as famously stated by Richard Stallman of the Free Software Foundation in 1985). So, the differentiating factor between open source software and other software is not that open source software is "freeware", but that it is licensed on terms that allow the source code to be accessed, modified and re-distributed by licensees. However, as open source software is being increasingly used, it is advisable for users and suppliers of technology to be aware of the key provisions that one might expect to see in an open source licence and to be forewarned of the likely implications. The Open Source Initiative (www.opensource.org), a non-profit organisation that promotes the concept of open source software, sets out certain principles that open source licences tend to have in common. These are summarised below, although it is important to review each open source licence on its own terms as licensors of open source software can (and often do) deviate from these principles to differing extents.

1 Free Distribution: the program must be licensed on terms that do not restrict, or charge a fee, for its distribution as part of an aggregated software distribution containing other software programs from other sources.

2 Source Code: the program being licensed must include source code or the source code must be easily accessible at no more than reasonable reproduction cost. Access to source code, often seen as the "crown jewels" of the software world, will enable a relatively skilled software engineer to modify the program, something that software licensors outside the open source context have been keen to prevent by issuing software in object code only.

3 Changes and Derived Works: the licensee must be allowed to modify and create derivative works from the original program and must be permitted to license these modified and derived versions under the original open source licence terms. So, not just the original program, but modifications to it must be capable of being freely distributed.

4 Integrity of author’s source code: The licence can require the derivative versions to carry a different name or version number from the original software. Also, whilst the source code for modifications must be made available, the licence can require that it be distributed by way of "patches" to the original source code. In this way, changes are always made available in source code form, but can be kept separate from the original source code.

5 Non-discrimination: The licence must not discriminate against any person or group of people. A common-place licence restriction that may be seen to contravene this principle are the restrictions that countries (such as the United States) place on exporting some types of software to certain countries (and thereby potentially "discriminating" against them). Those entering into open source licences which are subject to such laws should check that the licence terms do not place them in breach of them.

6 No discrimination against fields of endeavour. The licence cannot limit use to certain purposes, whether commercial or non-commercial. This type of restriction is of course common place in standard licences outside the open source context.

7 Distribution of licence. The licence terms must apply to all to whom the program is redistributed without the need for the execution of an additional licence by these parties. The extent to which this is enforceable would of course depend on the laws in the particular country in which the licence is being enforced.

8 The licence must not be specific to a particular product. The licence terms must not depend on the program being part of a particular software distribution or only for use in relation to a given product. This addresses the underlying principle that it must be freely available for use in any context.

9 The licence must not place restrictions on other software that is distributed alongside the licensed software. This does not preclude open source software licenses from stating that software that is incorporated into or linked with it so as to form a single work, is also subject to the open source licence.

10 The licence must be technology neutral. So, no term of the licence may be predicated on any individual technology or style of interface (e.g. permitting the use of click-wrap licences only).

These principles are plainly very different to those which are usually reflected in a non-open source software licence, especially in respect of the licensee’s ability to modify and re-license the licensed software. So, given the broad concept of what open source software is, what are the relative merits of using it?

A significant advantage of open source software is that the licensee is free to modify it. So, if the licensee has the necessary technical skills, it can maintain and support the open source software itself. This is very different to the case with software outside the open source context where the user may have no choice but to pay the licensor for support services. With open source software, even if the licensee does not have the technical expertise and needs to use a third party to provide the support services, it can identify the most competitively priced provider and is not forced to rely upon the licensor.

A further consequence of the above is that the licensee is not bound to the licensor by the usual provisions of a support contract that might force it to use the latest or one of the most recent up-grades in order to qualify for support services. Many licensors will find this attractive as they may feel that up-grades are unnecessary, and have concerns that they can disrupt business operations given the time needed to test and implement them. Interestingly, Microsoft announced earlier this month that it is extending the support lifecycle of its enterprise products to 10 years, thus removing the need for users to up-grade those products to qualify for support during this period (an issue that was widely perceived as forcing users to see open source software as an alternative to Microsoft).

Another advantage of open source software is that other licensees and the wider open source community are free to scrutinise the software and may already have developed appropriate patches or fixes to problems. In theory, these could be easily accessible and applicable, probably at no or minimal cost.

Interestingly, many commentators refrain from confirming that open source software is necessarily more cost effective than other software. As mentioned above, licensors can (and do) still charge licence fees for using open source software.

Whilst the above advantages are compelling, open source software is not without its disadvantages.

For instance, if the licensee develops modifications to the source code, it may (depending on the terms of the open source licence) be required to make those modifications subject to a similar open source licence. The practical effect of this is that it cannot licence modifications in such a way as to prevent third parties from using and distributing them. In turn, this could mean that the licensee would potentially lose any competitive advantage gained by virtue of its investment in the original development effort.

In addition, the terms of the original open source licence may mean that proprietary code that is incorporated into the open source software and, potentially, proprietary software that links with open source software will be deemed to be part of the open source software and, therefore, required to be licensed as if it was open source software. This could be a key risk for many businesses who use open source software in complex systems that include other third party software.

Many open source licenses do not have any warranties either as to title or as to quality, and often come with no IPR indemnity and extensive exclusions of liability. So, in effect, the software may be licensed on an "as is" basis. This can cause real issues for businesses and other users for whom having a licensor who is prepared to be accountable for the software and its performance is almost as important as its price. To a limited extent, if the particular open source licence is subject to English law, one may seek to argue that wide ranging exclusions of warranty and liability are not enforceable under the Unfair Contract Terms Act 1977. However, it is clearly far better to have expressed contractual protection rather than just a "good argument" as to what the contractual position should be.

Finally, whilst some may argue that open source software encourages the best programmers in the world to contribute free to improving the software, it is also unfortunately the case that it also enables the best hackers in the world to view that software. In this way, it makes it much easier for those with less positive interests to potentially introduce viruses that can successfully attack open source software.

The above highlights some, but by no means all, of the issues that relate to open source software. At present, some users of technology (with some justification) feel that it will be difficult for licensors, or others with standing to bring claims, to detect and enforce breaches of such licences. Only time will tell as to who will actually bring claims for breaches of open source licences, what remedies they seek and to what extent those claims will be successful. What is clear is that users and suppliers of technology would be well advised to act now to see how open source software may impact on their standard terms of business and internal policies for procuring and supplying software; for instance, many users of technology now include express provisions in software licences that prohibit suppliers from licensing open source software to them without their express written consent. Also, users and suppliers should also consider how this may impact on wider issues such as purchasing or collaborating with companies that use open source software. In the latter case, an important issue is to establish the "audit trail" as to what changes have been made to the original open source software and seeing if the changes are capable of being supported. It seems unlikely that the open source "band wagon" will be slowing any time soon, and addressing such issues in advance is likely to pay dividends in the future.