Open source software is arguably one of the foundation stones of the collaborative economy and, as many trailblazers are, is a controversial topic.

Even its name has been subject to heated discussions. Whether a program is called “Free Software”, “Free and open source software (FOSS)” or “open source software (OSS)” has always been (and to a certain extent still is) an indication of the personal view of the motivations, ideologies, philosophical views etc. behind the specific development and distribution model.

Discussions around ideological concepts are of much less significance today than fifteen, twenty or even twenty five years ago when 'Free Software' was still (meant to be) understood as a clear statement against the development and distribution of classic proprietary 'Closed Software'. Open source software today has become an important commercial factor in many areas. Examples include Apache, MySQL, GNU/Linux, Android, Firefox and Thunderbird and many proprietary applications also correspond or come packaged with specific open source components and libraries (like OpenSSL, whose significance was highlighted just recently by the 'Heartbleed bug'). The influence of open source is even being felt in the public sector, for example:

  • the German city of Munich equipped around 15.000 work stations with open source software;
  • Austrian courts use OpenOffice for word processing and open source software plays an important role in Austrian e-government; and
  • the Dutch government has adopted a proactive approach to the use of open source software after a parliamentary investigation conducted in 2014 brought to light that up to five billion Euros are spent and wasted each year by the Dutch government on failing IT projects.

The Definition of open source software

The open source Initiative defines open source licences as those that fulfil certain criteria which include (view the full list):

  • the licence 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 licence shall not require a royalty or other fee for such sale;
  • the program must include source code, and must allow distribution in source code as well as in compiled form. Where some form of a product is not distributed with source code, there must be a well-publicised means of obtaining the source code;
  • the licence must allow modifications and derived works, and must allow them to be distributed under the same terms as the licence of the original software; and
  • the rights attached to the program must apply to anyone to whom the program is redistributed without the need for execution of an additional licence by those parties.

Copyleft Licenses

Two significant subgroups of open source licences can be distinguished: on the one hand the so-called copyleft licences and on the other hand the licences without any copyleft effect (non-copyleft licences).

Copyleft (a wordplay on "copyright") means that the distribution of copies of modified versions of a work is permitted only on condition that the original licensing conditions are also applied to those modifications. The extent to which this copyleft effect applies varies.

If open source elements distributed under a copyleft licence are used in newly created software, it is important to assess what licensing conditions apply to the open source elements and whether it is necessary to have the newly created software distributed under the same conditions.

Copyleft licences include the GNU General Public Licence and version 3, which come with a very strong copyleft effect, and the (weaker) GNU Lesser General Public Licence. Non-Copyleft licences include the Apache licence, the BSD licence and the MIT licence.

Open source and the sharing economy

In the context of the sharing or collaborative economy, copyleft licences are of specific interest since any form of participation is strictly tied to the obligation to also make own developments available. To this aim, copyleft licences include specific provisions to ensure that future individual developments based on the initial work have to be made available under the same licensing system. Such provisions condition the licence grant upon compliance with the respective licence terms. On breach of the licence terms, the licence is automatically terminated.

This leads to a system where you do have to share any of your improvements (including, in particular, the source code and the know-how embedded in it), when you are taking advantage of the existing code yourself (unless the development is for your internal use only and will not be distributed); you are literally forced to share.

Open source and the government

It is interesting to see that the obligation to share concept in some projects has been explicitly supported by European governments. The European Union has even drafted its own open source licence: the EUPL, which is available in the languages of all Member States and is intended to be lawful in all of them.

Even though the EUPL does not have the same importance as the renowned open source licences, at least some governmental software has been released under the EUPL.  Austrian eGovernment is a prime example where MOA (Module for Online Applications), which provides functionality required for eGovernment solutions and MOCCA (Modular Open Citizen Card Architecture), a project providing a software environment for the use of Austrian eGovernment solutions, are both licensed under the EUPL.

How do the Courts deal with this obligation to share?

Courts in Germany have repeatedly accepted the validity of the copyleft mechanism with the licensee’s rights automatically terminating on breach of the licence terms under German law.  In an interesting decision, the Regional Court of Berlin (8 November 2011, 16 O 255/10) ruled that proprietary firmware with open source components used by a German router manufacturer was fully licensed under the GPL v2 and that, under the German Copyright Act, the manufacturer could not oblige a third party to no longer offer a software tool for the manufacturer’s routers modifying such firmware. The Regional Court of Cologne on 17 July 2014 (14 O 463/13) decided on the compatibility of the GPL with the LGPL that an open source software product initially licensed under GPL must not be further licensed under the LGPL.

It is interesting to see that in contrast to Germany, there are hardly any relevant cases regarding open source licences in many other European jurisdictions.  One example in which the field of open source software has at least been touched on, is a decision by the District Court of Amsterdam (8 December 2014, ECLI:NL:RBAMS:2014:8791) in which the Court ruled that the sole fact that a source code of an application contained open source elements did not prevent it being considered an expression of the intellectual creation of the developer and therefore a copyright protectable work in accordance with European Court of Justice, 16 July 2009, C-5/08 (Infopaq).

Open source software has always been a driver of innovation in the tech sector. With the expansion of collaborative economy models and opportunities, not least in the public sector, its importance looks set to continue.