Legal Issues for the Use of Free and Open Source Software in Government

By Fitzgerald, Brian; Suzor, Nic | Melbourne University Law Review, August 2005 | Go to article overview
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Legal Issues for the Use of Free and Open Source Software in Government

Fitzgerald, Brian, Suzor, Nic, Melbourne University Law Review

[This article explains the notion of free and open source software and the reasons why governments throughout the world are giving it close consideration. In particular, it highlights key legal issues facing the adoption and development of free and open source software by governments. From the aspect of government procurement, the article examines the models used by governments to create a level playing field for the supply of free and open source software, intellectual property warranties and indemnities and the operation of the Trade Practices Act 1974 (Cth). In terms of government development of free and open source software, the article considers the licensing mechanisms that will be implemented in the development and distribution of such software. In the final section, the article assesses the threat software patents and the current SCO litigation provide for free and open source software. The article concludes by emphasising that governments need to be fully aware of this landscape to assess what is the most effective technology available.]


I   Introduction
II  The Free Software Model
       A What Is 'Free Software'?
       B GPL and Copyleft Licences
       C The Open Source Initiative
       D Tension between 'Open Source' and 'Free' Software
III Benefits of FOSS for Governments
       A Cost
       B Open Standards
       C Security
       D Providing Information Resources to the Community
 IV Government Procurement and Supply of Free Software
       A Government Procurement Practices
       B Indemnities for Title and Warranties for Performance
       C Requirements of the Australian Trade Practices Act
  V Government as a Developer of Free Software
       A The Obligation to Redistribute Source Code
       B Enforceability of the GPL
       C Layering and Combining of Licences
       D Dual Licensing
 VI Threats to the FOSS Movement
       A Software Patents
       B The SCO v IBM Litigation
             1 UNIX and GNU/Linux--A Brief History
             2 The Litigation
VII Conclusion: The Choice to Be Made


A grassroots movement started by free software guru Richard Stallman in the 1980s has revolutionised the way we think about the development and distribution of computer software. Stallman was frustrated by the fact that he could not access the source code (1) of software that was controlling a Xerox printer in his lab at Massachusetts Institute of Technology ('MIT'). His quest to open up access to source code in software has led to the creation of a powerful form of collaboration known as the free software movement. (2)

Free software is distributed with the source code disclosed, or open, at the point of distribution. Non-free or proprietary software is distributed with no source code disclosed, meaning that anyone who wishes to discover that source code must engage in a difficult and time-consuming process of reverse engineering. (3) Many developers fear that openly distributing program source code will promote free-riding on community-based developments because it allows recipients to use software to their advantage and profit without giving back to the community.

In order to remedy the most extreme examples of this, Stallman ensured that the source code he distributed was covered by a legally-binding obligation: the GNU (4) General Public License ('GPL'). (5) The GPL obliges those who modify free software code to disclose their modifications to any recipient of the altered software, which in essence means the whole community. In this way, the GPL attaches itself to the copyright in software code owned by a licensor, so as to oblige recipients to share their improvements for the benefit of all users.

This was Stallman's powerful insight: copyright in software code can be used not only to restrict access and exploit its benefits for monetary reward, but also to maintain open access for downstream users and developers.

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Legal Issues for the Use of Free and Open Source Software in Government


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