06 June 2005
Key Points:
There are many commercial and technical issues which potential users of open source software must consider.
When all is said and done, government requires software which does the following:
There has been a growing trend for government departments in the UK, Europe and the US to use open source software. This article outlines what open source software is and examines some of the more important legal issues to be considered when government procures open source software.
Broadly, software is made up of source code and object code. The source code consists of a set of human readable programming statements that are created by a programmer. The source code cannot itself be executed by a computer but is compiled with a specialised program, and the result is the object code. The object code consists of a sequence of binary instructions that the computer’s microprocessor can understand but that is practically impossible for a human to read or modify.
Vendors of proprietary software almost invariably retain the source code and license only the object code to the customer. This makes it impossible for the customer to modify the source code and, hence, modify the software program without consulting with the software vendor. As a result, the user can only use whatever is provided to it by the software vendor, along with any modifications that the software vendor provides in the form of upgrades or new releases, or which the software vendor agrees to make on behalf of the customer. This model continues to be used by the majority of commercial software companies.
In contrast, open source software licensing operates on a set of fundamentally different principles, providing users with greater freedom in the way in which they deal with the source code, and hence the software program. Open source software is software where the source code can usually be modified and, in some cases, openly distributed.
There are many different types of open source software, designed for a myriad of purposes. Some is available free and downloadable from the internet, free of all restrictions including ordinary copyright restrictions. It is unlikely however, that any government department or agency would consider using free software to support its critical operations. For a start, it is unlikely there would be any reliable support, other than from other users. User support could be random, inaccurate and potentially damaging. Furthermore, freely-available open source software almost invariably comes without any warranty.
Recently, however, open source software has become much more mainstream, partly because significant software and hardware vendors have recognised its potential as a new revenue source. On the other side, large software users have seen that open source software can offer cost savings over similar proprietary software.
These developments mean one can purchase a licence for open source software for large-scale applications which mirrors proprietary software, such as desktop, server, mainframe and browser software, often at lower prices. However, apart from support and warranties, other legal issues must be considered in assessing its value for money, given that Commonwealth Government policy clearly states that a low price does not automatically mean value for money.
Copyright infringement
Open source software is not always able to be freely redistributed in the manner described earlier. Some types restrict the copying of the software and any derivative works (ie. modifications). The inherent dangers are illustrated by the recent legal action brought by SCO Group against some major international companies. SCO alleges that they copied SCO’s proprietary software by incorporating SCO materials into what is allegedly open source software. While this represents an extreme example of alleged breaches of copyright through the use of open source software, it is perhaps the greatest concern for IT managers and CIOs.
Intellectual property indemnities
In contrast to most proprietary software licences, open source software licences have not, until recently, indemnified customers against claims by third parties of intellectual property rights breaches. Proprietary software vendors have touted their indemnities as a major advantage to customers over open source software. However, some vendors of open source software have also started offering these indemnities to match the proprietary software vendors. In any event, the absence of an indemnity could expose the customer to potential claims by third parties that their intellectual property rights had been breached.
Obsolescence
One of the primary requirements of large-scale software users is the need for continuity. Customers of proprietary software sometimes complain of perfectly good software being recombined in a way which reduces its utility, or even makes it obsolete, during the life of the licence. Avoiding obsolescence is equally important with open source software, however given that the user will have access to the source code, and possibly a wide user base, the issue may not be as acute.
Adverse effects on other systems
Sometimes proprietary software vendors will give warranties to the effect that their software will not adversely affect the customer’s other software or systems. They argue that, given the widespread use of their software, it is unlikely their software will have adverse effects. While this may be true, as with the obsolescence issue, users of open source software may have a greater ability to fix the problem themselves.
This article has not touched on the many commercial and technical issues which potential users of open source software must consider. There is no doubting, however, that the emergence of significant players in the open source software market will provide some interesting challenges for government in the immediate future.
