Book Review: Understanding Open Source and Free Software Licensing

By Rick Moen

BKUOSFSL.RVW 20081029
%A   Andrew M. St. Laurent
%D   August 2004
%G   0-596-00581-4
%I   O'Reilly Media
%O   "Understanding Open Source and Free Software Licensing"
%P   224 pages
%T   Understanding Open Source and Free Software Licensing

Andrew St. Laurent's 2004 volume Understanding Open Source and Free Software Licensing is O'Reilly's attempt to fill a significant need for good resources on this subject. It joins OSI chief counsel Lawrence Rosen's similar volume from Prentice Hall, Open Source Licensing: Software Freedom and Intellectual Property Law, published at nearly the same time, and Rutgers School of Law professor Rod Dixon's hardcover volume from Artech House/Horizon, Open Source Software Law.

There's a vital need for such books because businesses have been dipping their toes into open source for the past decade and immediately stumbling over legal issues, both real and imaginary. As a longtime observer of the resulting fray, I've been longing for a good book on the subject.

St. Laurent's comes within spitting distance of being that book. As an attorney with an interest in intellectual property law, he is able to give a lucid run-through of about a dozen of the most common open source licences, explaining what each clause means in detail, and contrasting them with a typical proprietary-software licence, similarly scrutinised. That part of the book, which comprises the book's middle 70%, will be useful for people wondering how licences get their force, and how they operate in our legal framework. The book falls down in a couple of places. First and foremost, it lacks a coherent conceptual overview, failing to clarify the default rights conveyed by unaided copyright law and its provisions. It takes for granted crucial concepts such as "derivative work": if work A is derivative of work B, then the second work's owner's rights (and licensing) determine what can be done with (encumber) the derivative. The advantages of registering copyrights (and consequences of not doing so), revocation of licences by the licensor, collective works versus joint works, and many other details important to licensing get no coverage at all. St. Laurent also doesn't mention at all a key aspect of licences, that the copyright holder attaches them to instances of a codebase, such that different instances may bear completely different terms of usage.

Some of the very common licensing controversies within the open source community aren't addressed, either: Is it necessary or desirable to require a licensee to indicate assent, e.g., through a clickwrap agreement mechanism? (St. Laurent states without reservation that clickwrap licences have been ruled enforceable, but the judicial record on the matter is actually mixed.) How extensive should the reach of licences' patent-defence clauses (if any) be? (Some licences revoke the rights of users who bring any sort of patent action, regardless of the dispute; others are limited in scope to just patent actions concerning the licensed work.) Is it possible to donate a work of original ownership directly to the public domain, despite the lack of any legal mechanism for doing so? Is it desirable to have a choice-of-law provision in one's licence? Can you, as the primary maintainer and copyright holder of a collective-work project, "upgrade" the project's licence to a better one? These are important questions, with which the book simply won't help you.

I was disappointed that St. Laurent takes for granted that the GNU General Public Licence and Lesser General Public Licence can be evaluated only as contracts; their author, law professor Eben Moglen, has clarified many times that both contracts are intended as rights grants under copyright law only, and the licences themselves clearly so state. Thus, the question of their enforceability doesn't hinge on contract formation -- but even there, St. Laurent's coverage is lacking: given that GPL and LGPL would be unilateral contracts without any necessary obligation of payment by the licensee, how would the necessary contract element of "valuable consideration" be found? (Each side in a contract must give up something of value; otherwise, there can be no contract.) A more-thorough treatment would have discussed that issue and also the licences' intended status as "bare copyright licences".

These flaws notwithstanding, the book does include excellent, reasonably readable yet in-depth analysis of all primary open source licences in use today, and I do strongly recommend it to all interested audiences.



Bio picture Rick has run freely-redistributable Unixen since 1992, having been roped in by first 386BSD, then Linux. Having found that either one sucked less, he blew away his last non-Unix box (OS/2 Warp) in 1996. He specialises in clue acquisition and delivery (documentation & training), system administration, security, WAN/LAN design and administration, and support. He helped plan the LINC Expo (which evolved into the first LinuxWorld Conference and Expo, in San Jose), Windows Refund Day, and several other rabble-rousing Linux community events in the San Francisco Bay Area. He's written and edited for IDG/LinuxWorld, SSC, and the USENIX Association; and spoken at LinuxWorld Conference and Expo and numerous user groups.

His first computer was his dad's slide rule, followed by visitor access to a card-walloping IBM mainframe at Stanford (1969). A glutton for punishment, he then moved on (during high school, 1970s) to early HP timeshared systems, People's Computer Company's PDP8s, and various of those they'll-never-fly-Orville microcomputers at the storied Homebrew Computer Club -- then more Big Blue computing horrors at college alleviated by bits of primeval BSD during UC Berkeley summer sessions, and so on. He's thus better qualified than most, to know just how much better off we are now.

When not playing Silicon Valley dot-com roulette, he enjoys long-distance bicycling, helping run science fiction conventions, and concentrating on becoming an uncarved block.

Copyright © 2008, Rick Moen, rick@linuxmafia.com.

This article was originally published in issue 155 of Linux Gazette, October 2008