[Fsf-friends] Re: Light on Free Software

[Ramanraj K]

> I wonder if we can think of any practical to measures arrest the
> spread of "open source" terminology and associated superficial ideas
> in government circles? 


The terminology that the law ought to use, while referring to software 
that negates the contituents of proprietary software is both interesting 
and important at this juncture.

If governments use the expression "free software" fully understanding 
the philosophy of the free software movement, this discussion will be 
redundant.  However, our open source friends are good at promoting free 
software, and now the stage has come when governments have started 
taking a serious interest in free software as it is of proven quality, 
open, saves costs, full of freedom desired by all interested in good 
governance.  Since some governments use "open source" terminology, this 
discussion assumes importance.  We have a duty to bring to the notice of 
governments which use "open source" terminology, the history of the free 
software movement, and the legal issues involved.  The following is a 
very brief outline, that may be read along with the previous postings 
touching on this subject.

According to the OED, "proprietary" means rights held in private 
ownership.  Initially, only private individuals and entities created 
software and owned the rights in it. RMS wished to create software that 
will be free from this kind of private ownership.  Free software was 
therefore a deliberate and intentional movement intended to negate the 
restrictions and hardships caused by private ownership of software. Now, 
the issue is: what would be the best expression in law to convey the 
idea that such software is free from restrictions imposed by private 
owners?  RMS rightly called it "free software" from the time of its very 
inception. The chief ingredient of Free Software is that it is free from 
the oppressive and unscientific restrictions imposed by private ownership.

The rights in respect of software are chiefly governed by copyright law. 
As soon as a person writes a software, by law he is vested with 
copyright over his software, regardless whether it is registered under a 
Copyright Act.  By default all software are proprietary having an 
identifiable author in whom copyright for the work will vest. Usually, 
free software produced under the GNU Project is released from private 
ownership under the terms of the GNU General Public License.

The Open Source Initiative started in 1998, chiefly by Eric Raymond, a 
hacker guru, argued that free software should be labelled as "open 
source" software.  The initiative, has been successful in promoting the 
interests of free software, but it has also resulted in an acrimonious 
debate within the community about the logical classification to be 
adopted while describing software.  The classification now competing for 
attention are:

    {free   | proprietary} software
                       -vs-
    {open  | closed/secret } source software

Fundamentally, Copyright law deals with the ownership and transfer of 
copyrights, and therefore software licences should be classified for the 
purposes of law only as free or proprietary.  Please study the following:

1. Classification of Software Licences in law:

                       software licences
            +-----------------+-----------------+
            |                                   |
          free                             proprietary


2. Table of Rights/Properties distinguishing the two classes:

--------------------+--------------------+-----------------------------
Right/Property        Free Software        Proprietary Software
--------------------+--------------------+-----------------------------
Part A: Rights/ingredients of Licence covered by Copyright Law
Copying               Free                 Restricted by/to Proprietor
Redistribution        Free                 Restricted
Exhibition            Free                 Restricted
Installation          Free                 Restricted
Assignment            Free                 Restricted
Modification          Free subject to      Restricted
                      making the
                      modified version
                      free as source
Sale                  Free                 Restricted
Hire                  Assignment itself    Restricted
                      Free                
Trading               Free                 Restricted
Importing             Free                 Restricted
Subsequent ownership  Free                 Restricted


Part B: Properties/ingredients not covered by Copyright Law:
Avaliability of       Free and Open        Could be open or closed/secret
  Source Code                              
Price                 Free                 Fancy prices/Cost if Honest 
                                          /sometimes free for n days, x 
persons etc
                                          /minor software given free as 
a marketing tool
                                          but a whole workable system is 
never free
Development Model     Free and Open        Restricted  and Closed
Prone to Virus        Well Protected       Weakly vulnerable   
Quality               Unmatched            ?
Growth Potential      High                 ?
Documentation         Free                 Restricted

In short:
sharing               Free                 Restricted
--------------------+--------------------+-----------------------------

Please note the division of the above table into Part A, covering 
ingredients covered by Copyright Law and those that are not under Part 
B.  Strictly speaking, the Copyright law does not look at the element of 
"price" or availability of "source code" at all. Open/Closed source 
classification further cannot clarify the question of ownership. To use 
such criteria to classify software licenses would therefore be 
inappropriate.    Songs, movies, and other literary works are "open" and 
there is nothing secret about a song or literary works in the way, 
software could have public object code and secretable source code.  Even 
if source code is revealed, the proprietary software could still say 
that under the terms of licence, it may not be copied or shared. 
Open/Closed source classification is therefore not appropriate.  But we 
can say free software inherently has the quality of being open source, 
owing to the very nature of how free software is created and used.  In 
other words, free software is a parent class, and being open souce is 
just one of its properties, or qualites.

Right from its inception, the expression Free Software has meant a 
negation of all that constituted proprietary software.  Software can 
therefore be intelligibly classified only as free or proprietary, where 
each class clearly and fully negates the other, for purposes of law. 
Further, this would be in consonance with the legal traditions of 
examining words in their historical context and setting.

This is good news for our "open source" friends.  Since the Open Source 
Initiative web site openly admits that they are marketing free software, 
obviously they are merely highlighting one aspect of free software: that 
its source is always open.  Since they are using "open source" label 
openly as a sales pitch for marketing free software, they can happily 
continue with the same.  However, when it comes to government, they can 
easily see the reason why law can deal only with free or proprietary 
software.

But it would be ideal if all of us including the law, media, hackers, 
users and govenments  uniformly use the expression "free software" 
everywhere, to maintain clarity and stand closer to truth.

Regards,
K. Ramanraj.