The Licensing Minefield

by Sebastian Rahtz on 12 November 2003


Licensing for developers and users: a route through the legal minefield Sebastian Rahtz Information Manager Oxford University Computing Services and JISC Open Source Software Advisory Service November 2003


Overheard today at work: Open source software? that doesn’t need a licence, does it? it’s free. Sorry, it is more complicated than that!


  • I am not a lawyer
  • I am not giving you legal advice
  • I am not speaking on behalf of Oxford University everything you hear today is anecdotal! all we can do is suggest questions for you to ask yourself and your lawyers.

Some software history

In the beginning (well, 30 years ago):

  • Hardware cost serious money
  • Operating system software was usually patched locally
  • Application software was thin on the ground
  • Users were highly computer-literate and were expected to develop their own programs so who cared about whether software was free?

…and then we had the PC revolution…

  • Desktop computers had to be sold cheaply
  • Ordinary people got computers
  • Some clever folks wrote killer applications
  • Bill Gates saw the value of a standard operating system and lo! a market was created and all was well in the world.

Well, almost

  • people got greedy and wanted free software
  • some big companies woke up to the value of the assets they had previously given away
  • a community of amateur programmers was unleashed on the world
  • a few people realized that there was a danger of being locked out of developments entirely

Red herrings

We had a curious interregnum where:

  • Lots of people stole (pirated) software
  • Some people tried selling on trust (shareware)
  • Other people thought public domain would solve everything
  • Yet other people thought a vague don’t use it to make money or war condition would be binding but now we have largely settled into a stable mixed economy.

Software deployment today

We have three main types of deployment:

  • Licensed use from a commercial company (eg Microsoft or Oracle), not necessarily with a direct cost
  • Effectively free software which you can pick up and reuse as it suits you, so long as you don’t claim it is yours (eg Apache)
  • Free Software which imposes stringent conditions on what you are or are not allowed to do with it (eg MySQL). Note that there is still some genuinely public domain software (TeX, sort of)

Licensing issues for deployment of OSS

Open source software is licensed to you by its owner. They are not giving it away! Remember:

  • Both Microsoft and the long-haired hacker from Siberia both claim copyright on their work
  • Neither Microsoft nor the hacker need offer you support or accept liability of any kind
  • All software deployment has a total cost of ownership which is unrelated to how you license it
  • Not all licensed software for which you pay no money is open source See for a description of what OSS implies.

The open source definition

This is the formal text from the Open Source Initiative:
1. Free Redistribution
The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.
  1. Source Code
    The program must include source code, and must allow distribution in source code as well as compiled form.
  2. Derived Works
    The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

Open Source definition (continued)

  1. Integrity of The Author’s Source Code
    The license may restrict source-code from being distributed in modified form only if the license allows the distribution of “patch files” with the source code for the purpose of modifying the program at build time.
  2. No Discrimination Against Persons or Groups
    The license must not discriminate against any person or group of persons.
  3. No Discrimination Against Fields of Endeavor
    The license must not restrict anyone from making use of the program in a specific field of endeavor.

Open Source definition (continued)

  1. Distribution of License
    The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
  2. License Must Not Be Specific to a Product
    The rights attached to the program must not depend on the program’s being part of a particular software distribution.
  3. The License Must Not Restrict Other Software
    The license must not place restrictions on other software that is distributed along with the licensed software.

Does any of this impact me as a casual user/deployer?

If you stay as a pure user, no. It’s free beer. But if you plan to

  • redistribute software (eg to students)
  • integrate it with your own systems
  • fix problems with it you’re bound by the licence you got with the program.

Typical licensing issues

  • you must (sometimes) redistribute the software intact with source code
  • if you integrate it with your own system and then redistribute that, your software may covered by the licence too
  • most OSS licences are (I think) perpetual but the author is not bound to release revised versions under the licence
  • if you do not submit patches back to the author, expect to have maintenance issues in the future
  • your tiny patches are copyrighted works in themselves, and licensing issues apply to them

The GNU licence question

50-80% of OSS uses the GNU General Public License.

The GPL does not require you to release your modified version. You are free to make modifications and use them privately, without ever releasing them. This applies to organizations (including companies), too; an organization can make a modified version and use it internally without ever releasing it outside the organization. But if you release the modified version to the public in some way, the GPL requires you to make the modified source code available to the program’s users, under the GPL. Thus, the GPL gives permission to release the modified program in certain ways, and not in other ways; but the decision of whether to release it is up to you.

GPL urban myths exploded

  • You can sell GPLed programs with no problem
  • The GPL does not apply to things you create with GPLed tools
  • You can change the programs and keep the changes to yourself; so long as you don’t distribute them
  • GPL software does not have any stamp of approval or follow any special standards
  • The copyright owner is not bound by the licence

Does the GPL limit you?

It limits you if plan to make money selling modified versions of GPL programs, or incorporate them into your own.

But many people make a living from GPLed software.

Companies mixing OSS with business

  • MySQL
  • RedHat and SuSE (suppliers of Linux)
  • IBM
  • Sun
  • Novell All these companies see a place for licensing some software under open source terms as part of their business.

What about dual licensing?

Some companies offer their software under more than one licence. MySQL is a good example. They are a reasonable-sized company with three main sources of revenue:

  • Online support and subscription services sold globally over the website to all users of the MySQL server.
  • Sales of commercial MySQL licences to users and developers of software products and of products that contain software.
  • Franchise of MySQL products and services under the MySQL brand to value-added partners. MySQL is available under GPL or commercial licence

Licensing issues for development

  • Who owns the IPR? To what extent do universities control the lives of their employees?
  • Which basic licence decision?

    • GPL: control the future
    • Apache: give it to a neutral third party
    • MIT: let a thousand flowers bloom
  • Who is the best person to protect your rights?

Exploitation concepts

UK HE/FE institutions typically do not understand that open source licensing is a form of exploitation which

  • can protect the instiution’s investment
  • can generate revenue from consultancy and teaching
  • does not exclude commercial exploitation
  • can provide intangible benefits (reputation) so expect problems when you raise the issue. But don’t hide your head in the sand.

Heads up

Three warnings:

  • Institutions are getting much more interested (legally) in what you do
  • The Research Councils may start saying that funded work should be open-source licensed unless specifically over-ridden
  • The market for casual software is shrinking; more people are insisting on open source for security and archival reasons

We’ve written some software…

A model you might like to adopt:

  • If the program is immediately exploitable for cash, do so
  • Protect your own future with a GPL licence, but allow for commercial licensing as well
  • Consider a neutral third party as copyright holder, if you want to protect yourself
  • If staff make patches open source software, relinquish your rights on their contributions, and allow them to send code back to the developers

Licence Q and A

Are you authorised?
Check whether you own the copyright. If you don’t, you cannot add an OSS licence
Do you care what happens to your work?
If you just want to make sure your stuff remains freely available for ever, choose an MIT-type licence
Are derivatives to be free as well?
Insist on the GPL
Do you simply want to make your program free?
(As in beer). Don’t feel you have to choose an open source licence


Free and open source software has many benefits so long you accept that:

  • you are bound by copyright law
  • most employers claim rights over their employees work
  • most software does need patching
  • free does not mean automatic suitable for purpose