Richard Poynder
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Free programs with strings attached

By RICHARD POYNDER

20th March 2002

Open source operating systems such as Linux and Apache, which can generally be downloaded from the internet and adapted or modified for use with other programs, have become a mainstream business tool.

More than half the world's websites now run on the Apache web server and 57 per cent of companies polled by IDC, the research company, used Linux to run a big application within their enterprise.

The popular view is that there are few restrictions on how open software can be used. But, like proprietary software, it is distributed with a copyright licence. While this may simply require anyone redistributing the software to acknowledge the original author, the most commonly used licence, the GNU General Public Licence or GPL, is significantly restrictive.

Some software industry experts believe that by integrating open source software into their infrastructure, companies are wandering into a legal minefield.

Craig Mundie, a senior vice-president at Microsoft, said last May the GPL "poses a threat to the intellectual property of any organisation making use of it".

The GPL pre-dates the open source movement. Created in the mid-1980s by Richard Stallman, founder of the Free Software Foundation, it was designed to help non-commercial programmers ensure their software remained free and would not be incorporated into the proprietary products of commercial software developers.

Mr Stallman devised a licence with a number of unconventional restrictions. "It says that if you distribute source under the GPL you cannot charge a software licensing fee for it but only for the cost of distribution," says Jason Matusow, Microsoft's shared source product manager. "It says that if you distribute code under the GPL, you must distribute source with it; and it says that if you include any GPL code into a larger body of work, the whole body of work is then covered by the GPL."

This last condition is particularly controversial, as it means the GPL can "convert" proprietary software into open source software - since any company incorporating licensed code into its own software products is obliged to open up its code too.

In this respect, Microsoft argues, the GPL threatens the entire software industry. "All IP developers ought to retain the rights to release their IP under whatever licence they choose - be it open source or commercial," Mr Matusow argues. "But the GPL attempts to take this choice out of their hands and force all IP into a single anti-commercial licence."

Open source advocates dismiss this as scare tactics. "Microsoft represents the old school of software licensing and they are defending an old business model," says Marten Mickos, CEO of MySQL, a Swedish open source software developer.

Moreover, an increasing number of commercial software companies - including Hewlett-Packard and International Business Machines - now combine open source software with their proprietary products.

Managed effectively, the viral aspects of GPL can be contained, says Scott Handy, IBM's director of Linux solutions marketing. "We have over 50 commercially licensed software products shipping on Linux and we find no problem managing that environment."

Nevertheless, the challenge of mixing proprietary and open source software has wrong-footed some. IBM stumbled last year when it discovered it was distributing a software product that violated the GPL.

Such mistakes can be expensive. Two years ago Mr Matusow, a programmer at Nvidia, a communications device developer, incorporated into a commercial video driver a portion of code freely available on the internet - without realising that it was licensed under the GPL. "Nvidia incurred significant additional cost in rectifying the situation," he says.

Opinions vary, however, over the degree of legal risk posed by the GPL. Since the licence has yet to be tested by the courts, some question its enforceability. It had been hoped that this would be clarified in February, when MySQL applied to a Boston court for an injunction to restrain NuSphere, a US software company, from distributing software allegedly in violation of the GPL. But the judge declined to hear technical arguments during the preliminary hearing.

This is not an issue for software companies alone, says Paul Lambert, a lawyer at Matheson Ormsby Prentice in Dublin. "There is a very real risk for any company using open source software and it won't be long before a contentious case comes to court."

Eben Moglen, general counsel of the Free Software Foundation, disagrees. "The GPL imposes an obligation only on those who choose to redistribute modified or unmodified versions of software outside their own enterprise, an activity that is deliberate and - for firms other than software firms - unusual, he says. "For 99.9 per cent of the users of GPL'd software, the licence never poses the slightest legal consequence."

Nevertheless, any company using licensed software could be putting its intellectual property at risk, says Mr Matusow. "Suppose a financial services company made modifications to some GPL'd software and then attached to those modifications an internal application it had developed for competitive differentiation. If the software were then distributed to colleagues, the source code would have to be published - which could lead to competitors gaining access to the same technology."

Mikael Pawlo, of Advokatfirman Lindahl, a Stockholm law firm, advises companies to view the debate as a wake-up call. "Many programmers will download and use code without considering the licence issues," he says. "Companies really need to undertake regular audits of their computer programs and check the associated licences."

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