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Guidelines included in this document

  • Use of FOSS licenses depending on project intent – choose a license for your project
  • Licence selection and attaining compliance – learn the details of the license compliance process

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Summary

This document provides the necessary background information to understand the domain of Free and Open-Source licences (FOSS). It starts with an overview of the benefits of FOSS, describes various types of free and open and some related licences, and describes other concerns and constraints related to licences. This is followed by some basic guidelines for the selection of a licence to be used in a project, including the relationship of the applied licence with sustainability and longevity, as well as key pointers on licence and IPR governance and tools that are available within the GÉANT context.

Free and Open-Source licences (FOSS)

Benefits of FOSS

The market is supposed to even out and equalise the total costs of ownership of equivalent software products. Still, vendors of proprietary software often claim that after some time the use of their products will be simpler and less costly than with FOSS. Some organisations do not want to invest in expertise and costs they often associate with the use and maintenance of FOSS, even when the needed effort is neglectable. They often may want to have an external organisation they can hold accountable for software risks and problems. But the experience has shown that it is very hard to hold a vendor of commercial software liable for it unless it has been tailor-made for a single customer and very strict contractual obligations were put in place.

On the other hand, the characteristics of FOSS make it a very attractive option for many users and organisations. Also, many commercial developers of open-source software often provide additional services as part of their business model. There are even third-party companies which provide support for open-source software.

The open-source model differs greatly from the one used operation of traditional licensed proprietary and commercial software by permitting both distribution and modification. The first limitation is also eliminated in freeware (free of charge) and shareware (free trial) software, at least for its binary form, but the possibility to modify the source code is crucial and has a huge impact, which has brought several substantial improvements over traditional proprietary licensing models.

  • Availability and lower costs – For highly advanced or specialised needs such as those related to research, new technologies and high load, the market is not large enough for a suitable commercial product to be available and sustained. The immediate and cost-free availability of open source is also associated with the need to develop internal expertise, which is often something that organisations and individuals want to do anyway or hire external support and maintenance. Many users – advanced ones in particular – want to be able to customise and adapt the software and are often happy to debug and maintain it. In research and education, the obligation to pay for software, overheads related or procurement and renewal of commercial licences, and related commitments are barriers that cannot be overcome by students, early researchers or small research groups. Access to the source code may also reduce their learning curve and allow them to be more effective with the technology. Furthermore, the cost of highly specialised or tailor-made software is often unacceptable even for large organisations, especially if a working solution can be achieved by combining and customising even several freely available building blocks. These factors have led to the wide adoption of open source in more advanced and specialised communities, the emergence of entirely new usage scenarios, and, along with the commodification and componentisation of resources and runtime environments, the introduction of large toolsets or architectures with many components, such as those based on microservices.
  • Innovation and flexibility – The easy access to the source code enables developers to add the features they need and incorporate novel ideas, algorithms and usage scenarios. They are not constrained by the organisational, commercial or strategic limitations of vendors of proprietary software, where the users would have to wait for the vendor to decide to provide and implement what they need. The more useful a new feature or solution is, the more developers and companies will join and contribute. The more programmers contribute to it, the better, more useful and more valuable the result is going to be. This has been proven to work even if the contributors are not required to share their derivative works. Furthermore, people who inherently need a specific improvement are more driven to provide a creative and innovative solution than those who are just paid to produce something.
  • Security and reliability through transparency – When the source code is available, many people can scrutinise or debug it. The security and functional flaws are more likely to be spotted and suboptimal solutions or vulnerabilities fixed. Contributors are aware that other experts will be looking at and reviewing their code, and will therefore tend to stick to higher standards of quality. Every new reviewer can see what has been done before and what went wrong with it. If they try to fix it, they may be more incentivised to come up with a better solution than someone who had to adapt to strict deadlines and other limitations or priorities. Also, someone in the right context due to their combination of prior knowledge, experience or earlier dealing with a similar problem is often in a better position to detect and address an issue or bug than the original author. Many open-source projects have dedicated reviewers who check modifications before they are included in the main codebase. They are not testers, but experts who care about the quality of the code and can work at their own pace. All these factors greatly improve software security and reliability, and this is the main reason why the great majority of services on the internet are nowadays running on Linux. With open source, when a vulnerability is identified in an active open-source project, the interested community members usually swarm in and quickly patch it. However, only those who keep up with the latest recommended versions, including the libraries they rely on, will benefit from this dynamic activity.
  • Longevity – Commercially licensed software can be retired by its vendor who no longer supports it. The vendor may go out of business without selling its software to another company. In such situations, there is no way to update abandoned software, fix bugs, or adapt it to new uses or platforms. Support, patches and other related services are not available anymore. Therefore, its usability can deteriorate quite rapidly and the user must decide when to invest in new software and migration to it instead of living with the growing problems. In contrast, open-source software is free to evolve continuously as anyone can access the source code and contribute to it. Even after it has been abandoned for some time, anyone can revive, adapt, fix or repurpose it. Many useful and widely used FOSS have wide, active and stable user communities, the members of which include individuals and research groups, but also large and small companies.

Types of FOSS licences

Open source licences are licences that allow the software to be freely used, modified, and shared [https://opensource.org/licenses]. Although there are many "Free software" and "open-source software" licences that are recognised by Free Software Foundation (FSF) and approved by Open Source Initiative (OSI), there are just a few licences that are popular, widely used, or have strong communities. However, a single software project may include several components, which include transitively other components, which may result in the presence of many software licences. To be approved as open by OSI, software licences must meet some criteria [https://opensource.org/osd]. But even open licences differ in terms of the rights and limitations they include, which are often on derivative works, such as modification of the original code or its use from the new code. About half of licences require disclosure of both the existing and new code to external users or when distributing the software but they do not require this for private use. It should be noted that a few of them also consider access over the network as the use that implies the right to receive the source code. They also specify whether modifications or the code using the licensed code must be released under the same licence or a similar licence may be used. The scope of this may be limited to modifications of existing files, additions or even any uses of a software library.

The open-source rules are designed so that those who receive copies of the software must themselves be able to redistribute the original and make derivative works from the original, at the same time allowing others to do the same. Some licences prevent open-source code from “getting closed” and require that users and contributors to the code propagate put up with open-source values by sharing their modifications or additions (derivative works) on the same terms as the original. This means that those who receive copies of these works must be able to redistribute the original and make derivatives ad infinitum.

As opposed to Creative Commons CC-ND and CC-NC licences, an open-source software licence must allow modifications or commercial uses to be considered truly open. If the licence prohibits the licensed material and derivatives from being used for commercial or (for example) military purposes, is considered to not be a free software licence since it limits who can use a program or for what. The OSI does not allow discrimination against persons, groups, or fields of endeavour in using the software, so it can be used for any purpose, including any business.

Most licences require the licence text as well as the copyright notice to be included with the licensed material. Some also require documenting the changes made to the licensed material.¶

Pieces of software may modify or extend fragments of already existing software, which is similar to the creation of “derivatives” in CC licences. To preserve the integrity and ensure maintenance of the original work, open-source licences often require derivative works to be distributed on the same terms under which the licensee was permitted access to the original work, such as the source code that was used (incorporated, copied or potentially modified) and the use of the resulting components, such as software libraries. While CC-ND licences condition sharing and reuse as long as the content is left unchanged, a piece of software may other software may use other software in many ways which do not require any modification or even actual inclusion of the used software. A piece of software may depend on other software by relying on its definitions, contained specifications, and interfaces, or by invoking it through dynamic or static linking, network communication and different types of interfaces and connectors. Therefore, software licences differ from those used for other types of works as they are focused on different ways software may be used, and, when a specific type of use occurs, how it affects the licensing of other software that is using it, and the scope of that impact. These terms include all conditions and obligations defined by the licence of used software. If demands are low, the licence is called permissive, as opposed to restrictive, or, more correctly, copyleft. If the scope is narrow, it does not extend to all extensions of the used work or the entire software that uses the licensed material. Instead, it is limited to requiring the availability of modifications of the original work or the changed existing files. The term that is used in this case is 'weak copyleft'. If the scope is broad, the licence of the used component and related conditions must be applied to all software that uses it. This is called 'strong copyleft'.

  • Public domain licences offer the most permissive model. Anyone can modify and use the software without any restrictions. But even if a component is free and comes without any legal strings attached, one should always make sure it is secure before adding it to the codebase.
  • Permissive licences contain minimal requirements about how the software can be modified or redistributed. Users do not have to republish any changes they make and typically only have to give attribution to the original authors. They provide a disclaimer and, often, require describing changes. This type of licence is used by almost two-thirds of open-source software in circulation [https://www.synopsys.com/blogs/software-security/top-open-source-licenses/]. Permissive licences are popular due to the flexibility they offer to those who use such licensed software and low IPR risk. These licences include the MIT (the most popular one, short and simple), Apache 2.0 (requires notice of changes, grants licence to patents unless litigating and mentions preservation of trademark rights), BSD (some versions require including the disclaimer) and ISC (along with its OpenBSD variant is a further simplification of MIT and BSD). Artistic License (used for Perl and in several variants of versions 1.0 and 2.0) is permissive, but it also includes compensation for damage.
  • Copyleft licences, also known as reciprocal licences or restrictive, protective, and even viral licences, allow modification of the code and distribution of new works based on it, as long as the requirements for redistribution under the same conditions are met. The intent is to ensure that rights that the user or modifier has benefited from are preserved in derivative works by disallowing the contributors to appropriate their changes and come in an asymmetric position to upstream contributors. This typically means that anyone who changes the code also has to release their modifications under the same licence. Copyleft licenses are often considered to be riskier in commercial settings, as they can limit the potential business value or threaten the secrecy of intellectual property. All copyleft licences are used by more than one-third of open-source software.
    • Weak copyleft licences have a library or file scope. Examples are the LGPL (Lesser GNU General Public License; 2.1 cleans text of 2.0 and allows dynamic linking without enforcing copyleft; 3.0 grants use of patents, it is not compatible with LGPL 2.0 but is with Apache 2.0 and the end-user must be able to install a modified version – it prohibits closed devices, DRM or hardware encryption or patents retaliation), EPL (Eclipse Public License 1.0 and 2.0), MPL (Mozilla Public License 1.0, 1.1 and 2.0 – it is simple, allows static linking and licence variants with additional terms), Ms-PL (Microsoft Public License), Ms-RL (Microsoft Reciprocal License), and CDDL (Common Development and Distribution License 1.0 and 1.1) require releasing the modified code only, thus allowing the use of open-source libraries in proprietary software. MPL, Ms-RL and CDDL require this only for the modifications of existing files. Libraries under LGPL, EPL and Ms-RL allow proprietary licences for the code that is using them, but the original licence also extends to new files in a modified library.
    • On the other hand, strong copyleft licences often require releasing the entire project or product under the licence that is the same or similar to the one of the used work. Among the copyleft software, the use of strong copyleft licences significantly prevails. These licences intend to keep everyone on the same page and disallow ‘free ride’ which is still possible with permissive and weak copyleft licenses. By introducing these restrictions, the creators of strong copyleft licences wanted to expand the presence of open-source software, ensure the sustainability of the open-source software ecosystem and strengthen the open-source-software movement. The most common and widely used licence is the GPL (GNU General Public License; 2.0 is more often used; 3.0 grants the use of patents, it is compatible with Apache 2.0 and the end-user must be able to install modified software).
    • AGPL (Affero General Public License 3.0) is similar to GPL, but it is also network protective. Use over a network is considered a distribution thus requiring modified code to be available to external users. It is becoming increasingly popular, as it closes the ‘ASP/SaaS loophole’ of GPL, which allow the software under GPL to be exploited without disclosure, as SaaS software by its nature is not distributed to users. AGPL is, as stated in its preamble, “specifically designed to ensure cooperation with the community in the case of network server software”.

Highlight: It is important to fulfil the requirements of chosen FOSS licence and ensure that there is also licence compatibility. If you did not fulfil the licence requirements, you are breaching licensing conditions, which might lead to significant financial loss. 

Source-available and ‘fauxpen’ licences

There are also non-FOSS restrictive licences which are often presented or perceived as being similar to FOSS, but which introduce limitations that prevent them from being open-source according to the Open Source Initiative (OSI) and free to the Free Software Foundation. Source available licenses (or shared source licences) are proprietary licenses that allow for source code to be viewed and only in some cases modified and redistributed. They make the code available for viewing to facilitate scenarios such as inspection, understanding of functioning, debugging, integration or testing of external components. Examples of such restrictive licences are Business Source License (BSL), Microsoft Limited Public License (Ms-LPL), Microsoft Limited Reciprocal License (Ms-LRL), and Microsoft Reference Source License (Ms-RSL). Some of those only grant rights to developers of Microsoft Windows-based software, while Ms-RSL allows viewing the source code for reference and debugging.

The user has no rights to use, share, modify or even compile the code. Having just access to source code is not the point of FOSS, but full freedom to use it, including for commercial or disreputable purposes, as long as the same freedom is preserved for those who use or even possibly pay for the code in question.

‘Fauxpen’ licences are similar to source-available licences. They are presented as open, but under closer scrutiny, it becomes clear that licensed software or product is effectively under the strict control of its vendor. These hybrid licences are intentionally deceptive and confusing. Server Side Public License (SSPL) is a strong copyleft source available license that requires public release of the source code of service management layers when providing a service. This restricts cloud providers from offering SSPL-licensed software to third parties as a service as this requires them to release under the SSPL the entirety of their source code, APIs and other software required for a user to run an instance of their service. SSPL also makes it impossible to use the Linux kernel, which is under the incompatible GPLv2-only licence. SSPL is therefore discriminatory toward a specific field of use. ELv2 (Elastic License v2) is a non-copyleft license prohibiting providing the products to others as a managed service, circumventing the license key functionality or removing or disabling features protected by license keys.

Open Source’s rule 6 (“no discrimination against fields of endeavour”) and FSF’s freedom zero: “the freedom to run the program as you wish, for any purpose” clearly indicate that 'fauxpen' and source-available licences are not FOSS. Providers of software who switch to such licences effectively transition projects that started as open source into proprietary licences and admit that their business models are inconsistent with open source. They claim that they want to protect their work from unfair exploitation by cloud providers and other free riders who would use their software without backing its creation and maintenance. At the same time, they appropriate the contribution of external developers who have donated their time and energy by adding to projects while they still were open source. Also, these companies most often use code from other open-source projects to power their businesses.

When a provider is switching to a proprietary commercial license, it can choose the time, terms and cost. The future costs of software and even its future availability are unknowable, as with any other proprietary software. When previously open software is embedded in or changed into a proprietary product, its users have to agree to the terms of a proprietary license, be left with an unmaintained version, or fork the last open version of the software and carry the associated burden of maintenance forever.

Products subjected to this bait-and-switch move became popular because they had been marketed as being FOSS, as developers prefer to be able to control whatever runs in their programs, and fix it or to have other people fix it, although they are not affiliated with the original maker of the tool or component. Also, such platforms gain traction as they typically provide free and one-stop solutions, where expensive licenses for commercial alternatives tend to add up, and open-source substitutes are less integrated. Even the developers in big enterprises prefer using FOSS to going through the slow, bureaucratic and multi-layered approval and procurement procedures.

The only advantage of the prior FOSS status is the possibility to fork the prior version, but even this window of opportunity may effectively close after some time if the community sticks with the vendor and its proprietary changes. Forks are also hard due to the resources needed and the necessary switch in branding, whereas people do not switch easily from one brand to another.

All this implies that access to updates of software under permissive licences and those with the 'sublicense' option may be volatile in the long run if the software is controlled by a single entity, as demonstrated in the cases of Elasticsearch and MongoDB. This why it is so important to carefully choose software that is guaranteed or at least most likely to remain FOSS.

Copyrights, patents and warranties

A copyright is a form of intellectual property which allows a legal creator of an original work to license that work to the extent governed by copyright law. Declaring copyright on some work does not require any registration or official notice but just to clearly and visibly declare the copyright and define its subject. The copyright can be also easily transferred to another subject, typically through a contract or statement. Since open-software licences by definition already open up the work to anyone under clear conditions, copyrights as such are not a problem, but the actual details of these conditions. The licensing concern related to copyright is whether the licence states it and how the text of the license and copyright notice (with the original copyright and attribution marks) should be included with the licensed material and presented. For example, the inclusion of the copyright may be required only for the source code or may also include binaries.

Highlight: What is important, under copyright law only the expression of ideas – not the ideas themselves – can be protected. As software is protected by copyright law, the diversity of FOSS licences with different requirements allows software developers to grant other users rights stated in the licence itself.

Patents are a much more complex form of intellectual property. An organization or individual who invented something substantial, novel and useful proves this in a regulated, expensive and time-consuming patent registration procedure. If this process is successful, a patent owner is granted the right that excludes others from making, using, selling, offering or making available the patented invention for the predefined period such as 20 years, during which the patent may be subject to maintenance fees. A patent may provide the holder with the associated royalties in terms of monetary compensation for using it, while its infringements are internationally enforceable and punishable in courts. Patent owners try to extend the boundaries of their patent and, at the same time, scan for infringements to maximize the royalties and penalties and thus recover the costs of patent registration or purchasing and maintenance, scanning and litigation. Therefore, there is always a risk of possible and even unknowing infringement of a patent by the licensor of software and, subsequently, their licensees.

Some licences describe the handling of potentially applicable patents and royalties, which removes at least some of the patents-related uncertainty. A licence may state that it does not grant any rights to the contributors’ patents. Or it may explicitly grant contributors’ patent rights. Both models eliminate some uncertainties, but they do not resolve the patenting issue. The latter approach is an attempt to prevent the appropriation of innovation and software through patents. But no software license would protect a licensee against a claim of infringement brought by a third-party patent holder, as licensors can only license works that belong to them. Since software patents are often too vague, abstract and ambiguous, they may be easily weaponised; they may protect even concepts or methods of interacting with a system. Neither the licensor nor the licensee may be aware of such a patent, so a patent troll or a competitor with an applicable patent may appear at almost any moment.

Even if a patent holder has licensed that patent for use in open-source software or the applied FOSS licence waives any patents-related obligations, that patent may be later narrowed or cancelled through litigation by a holder of a rival patent. If this happens, even the software licensee who has fully complied with the terms of the original license and the licensor’s patent may become liable for infringement of a competing patent if it continues to use the affected software. Since the patent narrowing or cancellation would affect not only the holder of the original patent but also its licensees, licensees may want to participate in protecting the licensor’s patent. As this can become expensive, licensees may embark on such an endeavour only if their business would be seriously affected by the requirements of the competing patent holder.

Other constraints and rights

Most licences require the licence text as well as the copyright notice to be included with the licensed material. Some also require documenting the changes made to the licensed material.

Some licences:

  • Describe circumstances in which the source code must be made available
  • State whether the changes must be documented
  • Describe the allowance or prohibition of using contributors' names, trademarks or logos
  • Declare whether they include a limitation of liability. Some clearly state that there is no warranty and that the software creator cannot be charged for damages. They explicitly assert that they do not offer any warranties or guarantees for using the code so that the author cannot be held liable if the code does not work well in some usage.
  • Are peculiar in what they consider software usage, or even constrain types of use (e.g., by prohibiting commercial, over-the-network or military usage), which disqualifies them from being considered real FOSS licences.

Contributor agreements

Copyleft licenses, in principle, prevent the code from being incorporated into or re-licenced to proprietary code. However, a licence change may still be possible with a loophole opened by contributor agreements. Terms that are typically used are Contributor License Agreement, Copyright Transfer Agreement or Copyright Assignment Agreement. These agreements are used by organisations that are guardians of software to own or use contributions. They may include a transfer of copyright. However, when these agreements include the transfer of unrestricted republishing rights (regardless of copyright transfer), allow distribution without restriction or explicitly permit relicensing and even sub-licensing, the contributed code can be relicensed at the discretion of the guardian.

Relicensing

Software relicensing is done for commercial reasons, or to improve licence compatibility. In the first case, the change is typically toward a proprietary licence that is often blurred as a ’fauxpen’ or source-available licence. The result of such relicensing is the elimination of some previous uses or users.

Relicensing is for better licence compatibility is conducted if the current licence is incompatible with those of other jointly used components so that a greater combined work could be licensed somehow.

Relicensing is possible:

  • Due to prior use of a permissive FOSS licence or another licence that allows sublicensing;
  • If it is allowed to the guardian organization by contributors through contributor or copyright agreements, by which they grant the organisation the right to sublicense or relicense, that is, redistribute the work under a different license;
  • If it is decided by the owner of the proprietary code.

Adding an alternative licence is not relicensing, as the old licence remains fully valid for those who decide to stick to it. Multi-licensing is therefore a better way to improve licence compatibility than relicensing. Also, it does not require a prior permissive licence or contributor agreements signed by all contributors. “Or later” styled licences are a concisely expressed form of multi-licensing in which all subsequent versions of the mentioned licence are accepted in advance, including those which currently still do not exist.

Governance of FOSS licences in general

Use of FOSS licenses depending on project intent

For internal use

  • One can use any FOSS and not worry about licences – they have their code and are not giving it to anyone, which is OK with all FOSS licences.
  • The code is kept private, but internal use is very limited – the use of software may easily evolve into sharing or use in commercial contexts that directly involve other parties.
  • What when the creators later decide to offer software to others? Without considering the licences of used components. They may end up with components with incompatible licences, unable to choose one for the product/project. Therefore is important to:
    • Start early to consider licences and overall attitude towards FOSS licences.
    • Learn about licences of used components and determine which licences are acceptable within the project.
    • Determine the potential future licence if the way software is used is changed.

Sharing software with someone

  • With permissive licences of components, the modifiers do not have to make any source code available.
  • With copyleft components, access to some or all source code must be allowed.
  • When sharing, the same or compatible licence for changed code or even the entire project must be used.
  • With several strong copyleft components, the creators may not be able to pick up a licence that is compatible with all of them.
  • Licence compatibility has become a major and very actual issue in the wider software community.
  • One should think twice about the software under a permissive licence that is effectively controlled by a single entity, especially if the software may be used in a service. Some modifiers or their customers may therefore prefer copyleft so that would be protected from licence changes.

For a service, the provider is safe if using any FOSS except one under AGPL (but even that as well as long as it does not mind letting the users get its code or do not want to use it from cloud providers, which may be forbidden from offering a service based on such software. The same applies to ‘fauxpen’ licences such as SSPL or ELv2.

Licence impact on community, quality, longevity and sustainability

Projects often follow a natural cycle of creation, a burst of intense activity, a long phase of steady use and productivity, and fading as it is replaced by new projects covering the same space but with a more advanced technology base; this happens through the slow or fast migration of the community. Factors that affect software sustainability and longevity are often analysed [https://opensource.com/life/14/1/evaluate-sustainability-open-source-project, https://repositum.tuwien.at/handle/20.500.12708/2820]. The longer the project is alive, the more likely it will exist. The activity of the community (number of contributions and active contributors) and the quality of its core members are more significant than the size of the user base for the sustainability of the software. An analysis of the Ohloh data [now at https://www.openhub.net/] about a large number of FOSS projects [https://redmonk.com/dberkholz/2013/04/22/the-size-of-open-source-communities-and-its-impact-upon-activity-licensing-and-hosting/] indicates that:

  • The larger the project is, the more like it is to work out the licensing issues and specify a licence. The portion of projects without a specified licence decreases with the number of monthly committers – they start at about 50% for a single committer, decrease to 40% for five, and stabilise at about 20% for projects with more than contributors.
  • Permissively licenced projects are evenly distributed regardless of their size. They start at 20% for up to 10 monthly contributors, peak at about 25% for 20-30 contributors, and then return to the baseline.
  • The use of copyleft licences coincides with the size of the active community. It starts with about 20%, increases to about 35% after 10 committers, and ends up at about 40% for projects with many contributors.

Highlight: The lack of a clear licence is an indication that the developers find licensing unimportant, confusing or too time-consuming for their purpose. Such projects do not tend to last long and establish a large community.

The utility of software is maximised if the widest possible set of users can appropriate its benefits. But FOSS, like many other parts of the digital infrastructure, suffers from a free-rider problem: “Resources are offered for free, and everybody (whether individual developer or large software company) uses them, so nobody is incentivised to contribute back, figuring that somebody else will step in.” [https://www.fordfoundation.org/work/learning/research-reports/roads-and-bridges-the-unseen-labor-behind-our-digital-infrastructure/]. A free rider has a competitive advantage, since it did not have to invest in the original development, and can invest in developing additional benefits and services instead. While a free-rider does not exclude others from using the code, which is not an exclusive resource, it may exhaust the original creator’s access to users. Users turn into customers; customers are an exhaustible common resource as they tend to stick to one provider. Customers contribute to provider income in various ways defined by its business model. Although most people perceive free riding as deeply unfair, it is still better to have someone using the creator’s open-source software than somebody else’s. The presence of a free-rider makes it more likely that others will also use this software and some of them will contribute back. Therefore, software free-riders, including competitors who capitalise on others’ work may have a positive overall effect as they act as mediators towards other contributors and customers. A large user community brings the contributors and paying customers and even brings the sponsors who otherwise would not show up. Still, for this to happen it is necessary to prevent the competing free-riders from suffocating the primary contributors. This means that the original contributor’s offering (beyond just software) must be made somewhat exclusive to incentivise users and customers to join.

  • Permissively licences software may start small, stay that way, or increase in terms of activity, but seem to be somewhat limited by the optionality of returning to the community by those who modify it.
  • Weak copyleft licences are suitable for libraries and other components the popularity and utility of which would be significantly affected by expansive licensing rules of strong copyleft licences.
  • Strong copyleft licences are suitable for large or stand-alone projects such as operating systems and specialised or productivity tools.

There is a growing number of companies whose business model is based on FOSS. This is model is called commercial open-source software. Their commercial offerings usually take the form of proprietary or closed-source IP, which may include a combination of premium features and hosted services that offer performance, scalability, availability, productivity, and security assurances. This is known as the ‘open core business model’. Some of them also offer professional services, including maintenance and support assurances.

The obligation to keep all modifications under the same or compatible copyleft licence works exceptionally well in projects such as the Linux kernel. This is particularly the case when the licence does not preclude the use of software to run other software under other types of licences. Therefore, the use of a copyleft licence may be a great benefit to the software, especially if it does not reduce its use in normal usage scenarios. This is why weak copyleft licences such as LGPL were designed for and they are applied when it is more important to enlarge the number of contributors (as with research software) than to boost its popularity by maximally liberal terms of use or to keep the competitive advantage by keeping the code proprietary. Furthermore, a combination of (often copyleft) open-source with additional proprietary add-on components or services on top is an often applied approach that balances openness with sustainability.

If a large enough member of the community has a sufficient influence on the platform, it may decide to fork it under a ‘fauxpen’ proprietary licence that significantly constrains its use, at the same redirecting most of the current users to the fork and taking full control over the new developments in it. The inadequacy of the original business model or the appearance of competing offerors is the reason for some makers of open source products, which have been seen as its custodians by the communities, to make this move. Of course, this is possible only with permissive licences that typically allow appropriation through relicensing. The appropriator does not even have to be the primary contributor to software, but the one most users refer to, for example by providing support or popular commercial add-ons. A similar outcome may be caused by the extensive use of software as a part of a cloud offering, where the cloud provider effectively distributes and monetises open-source software without meaningfully contributing back to it or by providing proprietary add-ons, which are typically limited to facilitating access to the platform within its cloud offering. The original ‘open core business model’ provider may then move to a network protective or ‘fauxpen’ licence. However, some projects with permissive licences, such as the Apache web server, have an extremely long lifespan and a huge community.

It is not possible to empirically determine whether software longevity benefits more from copyleft or permissive licences, as this more depends on other circumstances. The choice of a licence supporting sustainability and longevity of software primarily depends on the attitude of the developers and community, as well as the primary usage scenarios. Of course, such a choice may not be available at all due to the requirements imposed by the organisation, funder or dependencies. Interestingly, when this choice is available, it may be more dependent on intrinsic motivations and view about fairness than extrinsic motivations such as the expectation of reputation or economic gain [https://opensource.com/law/13/8/motivation-free-software-licensing]. On the other hand, if the developers invest in interoperability and open standards, this may greatly help project adoption regardless of the licence.

Multi-licensing under permissive and copyleft or copyleft and proprietary terms is also a viable solution, as it increases licensing compatibility when the software when is to be combined with other components into new products. At the same time, it allows for a larger user base and, at least to some extent, stimulates future contributions.

The user base is also not to be neglected, and it greatly contributes to the sustainability of permissive FOSS. Users drive the functionality, identify the bugs, and shape the direction of a project to meet their needs. This may result in slick products that ‘just work’ without much configuration and customisation, as long as the target audience is large enough and there are other factors that contribute to the product ecosystem. Still, it is often very hard to determine the size and engagement of the user community. What is often much easier to assess (when choosing), but hard to incite (when developing), is the wider ecosystem around a project established by the engagement of other providers which may offer support, consultancy, customisation, hosting, or bundling with their products or services.

Besides often emphasised doubts about the FOSS business models, some authors [Lanier, You are not a gadget] dispute open source and open content expropriation of intellectual production as a form of "Digital Maoism" which stifles small-scale entrepreneurship and destroyed opportunities for the middle class to finance content creation, resulting in the concentration of wealth in a few corporations and individuals, who insert themselves as content and service concentrators. However, instead of FOSS, this criticism should be rather directed to the centralisation of distribution and advertising platforms and the model of “free services” paid for through reselling of personal data, user profiles and targeted marketing. The large concentrators depend on FOSS like anyone else, but their core components are always proprietary. On the other hand, big tech companies frequently create or appropriate FOSS platforms and tools for consumers and developers to tie the customers to their ecosystems and technologies. Typical examples are some very popular application development tools, run-time environments, non-SQL data storage and processing platforms and AI platforms which are typically conveniently tied to companies’ cloud offerings. Therefore, whenever a big tech company offers a sleek FOSS component or platform, developers should think twice if they want to become ‘products’ again and be recruited into the company’s camp.

Despite FOSS’s success, scaling and sustaining open-source projects remain challenging.

Licence selection and attaining compliance

Copyleft licences ensure licensing stability, while permissive software can be forked and relicensed by a major contributor or a company providing popular free or commercial services or products based on this software. Such an organisation can also strongly influence software evolution and usage patterns.

  • Available options may be mandated or recommended by the institution, project management or funder.
  • The constraints of other involved parties and coauthors must be respected.
  • The constraints imposed by original authors and licences of dependencies must be respected.
  • There may be some typical and established software licensing practices of the community.

Personal preferences and attitudes of software authors, who should also consider desirable public messages and non-mandating institutional, project-level or funder preferences on software licensing and open source.

The choice is typically quite simple. The existing constraints most often mandate the type of licence. If these institutional or other policies prohibit the use of copyleft licences, this also means that the software must not use components under such licences. But if this is allowed and such components are needed and useful, then a compatible copyleft licence is to be used.

The opportunity for a relatively free choice exists in a situation where all important used components come with either permissive or weak copyleft licences. But if components with weak copyleft licences are modified, the modification must retain the original or use a compatible licence.

Highlight: Permissive (non-copyleft) open source licences, such as MIT license, BSD-based licences or Apache License 2.0, are strongly encouraged for GÉANT software projects. Permissive licenses guarantee the freedoms to use, modify, and redistribute the code. As software under strong copyleft cannot be integrated into software under permissive licences, strong copyleft licences shall be avoided - such a licence may be approved by the GÉANT IPR Coordinator if it does not impede the adoption or reuse of software in the target community and it is mandated by a wider collaboration or it is necessary due to the licence of a critical component without a viable alternative. Software-related artifacts (technical documentation, configuration and user guides..) that are distributed with software or kept in its source code repository should be under the same licence as software. For separate tutorials, presentations or standalone training or promotional materials, the CC BY-NC or CC BY licence is recommended.

Typical steps

Gather information (can be done with Mend)

  • Note the licence of the ‘product’ (entire bundle of created components) or ‘project’ (one program or stand-alone component), if set
  • Create an open-source inventory of used components
  • Detect vulnerable open-source components (to remove or replace)
  • Identify outdated open-source libraries (to replace?)
  • Identify licences of used components (in-licences)
  • Clarify ambiguities or doubts, such as those on the use or modification of libraries
  • A tool may not be able to properly identify a licence – in Mend, some are suspect or ambiguous
  • Information about the applied licence may be false, unclear or contradictory
  • Some licences may be recognised under several names
  • Some (permissive) licences (BSD, Artistic …) have unnumbered variants or are sometimes edited by authors
  • Applicability of ‘or later’ licences may be unclear or even edited in the licence text
  • Document gathered information – Mend does the above through reports, UI and data exports
  • Document your decisions – some may be refined during remediation

Document (can be done with Mend)

Remediate

  • Choose a product/project licence (out-licence) compatible with key dependencies
  • Initial improvements
  • Remedy vulnerable open-source components
  • Update outdated open-source libraries (where possible)
  • Ask component authors to clarify their licence or to relicense
  • Pay for the required proprietarily licensed software
  • Choose among dual licences of components
  • Identify remaining incompatible licences
  • Decide what to do with components that use these licences
  • Remove (component and corresponding functionality) if not necessary
  • Replace with an existing equivalent
  • Move to server-side (central service)
  • Write your replacement
  • Enforce open source licence compliance (e.g., provide all required compliance artifacts)
  • Accept some risks

Create compliance artifacts (to ensure compliance)

Software composition analysis – inventory tools

Ideally, compliance should be continuously monitored as a part of the build process.

Commercial services

FOSS solutions

Highlight: Each GÉANT software project shall be analysed with the GÉANT-endorsed Software Composition Analysis tool in order to ensure licence compliance and licence compatibility.

Licence selection tools

Below you will find resources which may help you with your selection:

If you have further questions you can contact iprcoordinator@geant.org.

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