Ruling favours copyright holders

For the London Free Press – September 15, 2008

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A recent U.S. Federal Appeals Court ruling has found that copyright laws apply to free software licences.

The Court in Jacobson versus Katzer held that copyright holders “who engage in open-source licensing have the right to control the modification and distribution of copyrighted material.”

Advocates of open-source software are ecstatic about the ruling. Before this decision, the ability of a copyright holder to offer their work free to the public and still enforce an “open-source” copyright licence and maintain control over the distribution and modification of their work was unclear.

Larry Lessig, a Stanford University law professor and developer of Creative Commons, has called the decision “a very important victory” that provides “important clarity and certainty by a critically important U.S. court.”

Creative Commons is a non-profit organization providing copyright licences that let individuals make their work available to the public while continuing to restrict certain rights. Creative Commons acted as a friend of the court in this case.

Free in this context means the users are free to modify and distribute the software to others. Several versions and types of open-source licences are available. Typically, creators of open-source software simply select a publicly available open-source licence to govern use of their code.

So why is this decision attracting so much attention?

Traditional software licences are closed-source or proprietary licences. They are closed-source because the human-readable programming, or source code, is hidden from users. This means users can’t modify the software.

In contrast, open-source licences make source code available, allowing users to revise and redistribute the code provided they meet the terms of the software licence. Some terms typically included in open-source licences require users to: track changes to the software, including programming instructions; credit the developer of the original software; and reveal the scope of the licence granted by the original owner.

This collaborative model of software development has been widely used in the artistic and scientific community, and has allowed companies such as Wikipedia to rapidly expand and improve their software at minimal cost.

Until this decision was released, some thought open-source licences could be enforced only under contract law. But this ruling held that the licence in question also was enforceable under copyright law, opening the door to more grounds and ways to enforce such licences. That the software was given away did not detract from the copyright claim.

This case has impact beyond software licences. Written content and music are often provided under a Creative Commons licence that lets users copy and use it under set conditions. Those conditions might include attributing the work to the author, not creating additional works based on it, and not using it for commercial purposes. Many blogs, for example, are published under Creative Commons licences.

Larry Lessig, a Stanford University law professor and developer of Creative Commons, has called the decision “a very important victory” that provides “important clarity and certainty by a critically important U.S. court.”

Quebec government sued for not using open source

A Montreal-based open source association has launched a lawsuit against the Quebec government for procuring proprietary software (an upgrade to Vista) without considering open source alternatives.   Ultimately this comes down to whether the Quebec government followed their own procurement rules.   And of course it isn’t as simple as if a commodity like paper was being purchased.  There are a lot of factors to consider when comparing software choices, especially when considering traditional software vs open source.

Take a look at this ITWorld Canada article about it.  I’m quoted in the article. (And yes, I’m in London, not Toronto.)

Be careful with GPL3 software has an article entitled Open Source Software Shows Its Muscle that talks about the perils of using open source software that uses the GPL3 license.

If one just uses some open source software with the GPL3 license on its own, it’s not an issue. The problem arises when it is tied in to other software, especially if one’s own product needs to work with some GPL3 software. Depending on how they interact, it can compromise the IP rights of your own product.

Read the article

Judge finds Novell owns Unix code – not SCO

SCO is the company that has sued IBM and others claiming that Linux uses UNIX source code that belongs to SCO.

The judge hearing the case recently ruled on several summary judgment motions, including a decision that Novell owns the Unix copyrights, not SCO. While the case is not over yet, that is a fundamental decision against SCO, and good news for all Linux users. Novell has publicly stated that they have no intention of taking any actions regarding Linux.

For more detail and commentary, see the Groklaw blog post of August 10, and subsequent entries.

GPL software licence has ramifications

For the London Free Press – July 30, 2007

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The Free Software Foundation (FSF) recently released the newest version of its General Public Licence, commonly known as GPL v.3. The GPL is a common open-source licence that governs the use of certain software.

Anyone that modifies and distributes GPL-licensed software, or uses GPL-licensed software as part of its product offerings, should consider the ramifications of the new licence. There is not much to be concerned about if one is merely using software licensed under the GPL.

Open-source software is software that includes the source code, or human-written version of the software, along with the object code, or machine-written software. While it’s often available for free, the defining attribute is that the user gets the source code, which it is able to modify and distribute. The GPL is one of many open-source licences.

One part of the GPL that has carried risk for businesses using it to develop and distribute software, is that they may be obligated to provide their source code to customers, depending on how it has been done.

Version 3 contains several revisions. The most notable ones involve patents and what has been referred to as “anti-TiVoization.” Some of the language has become more legal in nature, which should make it easier to interpret. The GPL was originally drafted as a philosophy or manifesto. That meant while it was easy to understand the perspective of the licence, it was not always easy to understand how it worked in individual fact situations.

The licence contains an explicit patent grant, meaning that any entity that contributes software using the GPL grants with it a perpetual, royalty-free licence to any of its patents that apply to the software.

It also contains a provision to block future deals similar to that between Microsoft and Novell, in which Microsoft protected customers of Novell’s Suse Linux Enterprise Server from certain Microsoft patent-infringement lawsuits. Under GPL 3, if one provides patent protection to some software users, that protection is automatically extended to everyone who gets the software, no matter how.

TiVo personal video recorders use Linux, which is governed by the GPL. The GPL’s authors didn’t like that TiVo was designed to not work if someone modified the software, so they included provisions to discourage restrictions on modification.

If you obtain software using GPL 3, you are bound by it. But software creators are still able to provide their product under GPL 2, if they wish.

While this may sound complex, as with any contract, the important thing is to understand the ramifications of the GPL, or any open-source licence, before using open-source software for anything but internal purposes.

The issues can be dealt with, but they need to be considered early, as a different approach to programming and distribution may be required to meet your needs.

Open source review crucial

David Canton – For the London Free Press – February 11, 2006

UPDATE Feb 16 – See below for an email sent by Richard Stallman that clarifies that while he launched the Free Software Movement, he does not favour the concept of open source.

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The GPL — perhaps the best known open source software licence — is being rewritten.

The concept of “open source” software was first put forward about 20 years ago by computer programmer Richard Stallman. It began as a philosophical notion that software should be distributed in a form that allows it to be modified by its users.

This means the source code — or human readable code — is distributed along with the object code — or computer readable code. Most open source software is free or low cost. It is improved and modified by a bevy of users, rather than employees of the creator.

Businesses using open source software as part of their software offerings have to be careful how they use it, since they may be required to provide their own source code.

The General Public Licence (GPL) is one of dozens of open-source licences, so it is crucial for the actual licence that accompanies any source code be read and understood.

The GPL reads as much as a manifesto as a licence. It is “intended to guarantee (the user’s) freedom to share and change free software — to ensure the software is free for all its users.”

“Free software” in this context is not necessarily meant to be free of charge. Rather it is free from restrictions on distribution and modification.

Most software licences place restrictions on the user to prevent the unauthorised distribution or modification of the program. The GPL encourages the modification and distribution of software.

In January, the Free Software Foundation began the process of updating the General Public Licence. Stallman and Free Software Foundation counsel Eben Moglen have begun a process of public debate and revision they hope will culminate in a GPL 3.0 in early 2007.

Stallman and Moglen have definite ideas about where they want the GPL to go in its next revision. Moglen calls the new version “an evolution representing catching up to 15 years of history (in which) technology . . . (and the) environment of free software changed for the better and the legal environment changed for the worse.”

They hope to address two main issues with the new GPL.

In 1991, the GPL was considered forward-thinking when it included provisions addressing patent law. Today, many complain these provisions are outdated. Stallman and Moglen are hoping to revise the patent provisions to ensure patent law cannot be used to restrict a user’s rights of distribution and modification of open source software.

The second key area deals with digital rights management. They anticipate the new GPL will limit the use of DRM in conjunction with open- source software.

An example is the increased use of TiVo in the U.S. TiVo, which allows viewers to record and watch television programs on demand, runs on a Linux core. Linux is one of the stalwarts of the open source community.

The TiVo system includes a digital rights management component that records every key-stroke that a user makes, thus tracking their viewing activity.

Moglen says TiVo just barely complied with the GPL 2.0 and thinks it unlikely it will be able to comply with the digital rights management provisions in GPL 3.0.

Linux may not, however, be subject to GPL 3.0. Linux creator Linus Torvalds is not happy with the proposed GPL 3.0 and says Linux is governed by version 2.0, not by any later version.

The draft GPL 3.0 can be found on the Free Software Foundation’s website at .


E-mail from Richard Stallman:

Your Feb 11 article inaccurately credited me with the “concept of open source”–a concept I do not favor. In 1983 I launched the Free Software Movement, a social movement to establish for computer users the freedom to redistribute and change the software they use. I wrote the GNU General Public License (GNU GPL) to defend the freedom of all users for the programs we developed for the GNU operating system (

GNU today is used with the kernel Linux, in the GNU+Linux combination.
The developers of Linux will decide whether Linux will use GNU GPL version 3, but we will certainly use it for the many GNU components in the GNU+Linux system.

The concept of “open source” was formulated in 1998 by those who wished to replace the ethical values of the Free Software Movement with purely practical values. They are entitled to their views, but please do not label us and our work with their slogan.


Richard Stallman
President, Free Software Foundation (

Open source GPL version 3 draft released

The GPL is one of the most well known open source software licences. It has been described as part manifesto, and part license.

It also causes confusion in the open source and commercial worlds because of its obligation in certain circumstances to make the source code of derivative works public.

The new draft is open for comment, and is not expected to be finalized for about a year.

Take a look at the following links for the text of the draft, and some commentary. I’ll write a more detailed article for my Free Press column later.

Read the draft on the Free Software Foundation site

Read a CNet article

Read a Wired article

Patents debate re-ignited

DAVID CANTON – For the London Free Press – February 12, 2005

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The open-source movement has had a terrific start to the New Year. Within two weeks , the open-source community received gifts from both IBM and Sun Microsystems. And these gifts re-ignited a debate over whether patents on software should even be allowed.

Open-source software is software where the source code, or human readable code, is readily available, such as Linux. Users are generally free to modify the software as they like — but with the caveat they must share their changes with all users.

On Jan. 11, IBM announced it would pledge open access to 500 IBM software patents. This means that anyone working on or using open-source software can use the 500 IBM patents royalty-free.

Continue reading “<strong>Patents debate re-ignited </strong>” »

Open Source gets IBM Bonus

Those in the open source community just got a late Christmas gift.

IBM just announced that they will not enforce 500 of its software patents against those using them for open source software development. In other words, the technology covered by those patents is available for use by anyone using them to create open source software.

One can speculate as to many reason’s why IBM would do that – but it will be a mutual benefit to the open source movement and IBM.

Read a CNet article

Read an IBM press release and the list of patents

OSS users must read fine print

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DAVID CANTON, For the London Free Press – October 23 2004

Open source software is becoming a popular option. Open source software (OSS) is software where the source code — or human readable code — is readily available, such as Linux.

Many are under the misconception that one must make public any new source code one creates that is in related to open source software.

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