When formulating and communicating legal advice to business stakeholders in a technological setting it is very important to be fully aware of the advantages and disadvantages presented by the use of open source software (OSS) products. OSS solutions can be highly beneficial for both internal use within an organization as well as integration or linking to a product in development that is to be commercialized. Accordingly, this article will focus on the main advantages presented by OSS technologies.
In order to fully grasp the benefits of OSS, we need to juxtapose it with traditional proprietary software. In contrast with the proprietary licensing model which is built primarily on restrictions, the OSS licensing model displays profound peculiarities. It is driven by certain fundamental freedoms that are passed onto the end user together with the software.
In general, the concept of “open source” is built upon three pillars – i) the open source technology, ii) the open source community that develops and improves this technology and iii) the open source licenses that regulate the use of the technology. These three key elements are intertwined together to produce a phenomenon that provides significant benefits to society. These include technological progress, accelerated innovation across the globe and economic growth. As mentioned, open source software distinguishes itself from proprietary software based on the fact that it provides certain fundamental freedoms to the end user. As per the definition established by the Free Software Foundation, there are 4 basic freedoms that a piece of software needs to provide in order to qualify as free software (despite some ideological differences, the terms “free software” and “open source software” can be treated as interchangeable for the purpose of our analysis). These are:
- The freedom to run the program as you wish, for any purpose (freedom 0).
- The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1).
- The freedom to redistribute copies so you can help others (freedom 2).
- The freedom to distribute copies of your modified versions to others (freedom 3).
As can be seen from the first freedom, the first key advantage of OSS is that it can be used for absolutely any purpose and on any type of computer system. This is freedom in an absolute form which you will never experience under the proprietary model. It gives you the possibility to use the solution personally, commercially, internally within an organization, externally, for research, for educational purposes, for whatever other purpose you may choose. Just to highlight the difference, under a proprietary software license, very often you will receive the product with a restriction for internal use only.
Second, you can not only study how the open source program works but also you are free to modify it in any way you want. Once again this is in stark contrast with the proprietary model where the vast majority of software licenses come with a prohibition to modify the software or create any derivative works. Under EU law you will basically have a statutory right to study how the programs works but it comes with a caveat. You can only do this while performing any of the acts of loading, displaying, running, transmitting or storing the program which as a lawful user you are entitled to do under the license. Additionally, under the proprietary model the licensee generally does not have access to the source code so such right to observe and study the way the program works will have very limited utility. Under the OSS model, the licensee receives full access to the source code of the program and this changes everything. Hence, modification of the source code is the next natural step after studying how the program works and it further amplifies the freedom of the end user.
Here it must be emphasized that the actual key to the 4 basic freedoms in the OSS model and the fundamental prerequisite for their materialization is the access to the source code of the software. Access to the source code should be provided or it should be possible that it is obtained for every open source software product. As it is clarified in article 2 of the Open Source Definition: “The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost, preferably downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.”
Third, you have the freedom to distribute copies of the open source product. This applies not only to the original OSS product that you download but also to any modified versions that you may have made. Once again this is very different to a proprietary license where you will only get distribution rights in case you are selected by a software vendor to act as its distributor. And even in such case, it is highly unlikely that you will get any modification rights or rights to distribute any modified copies of the software.
Another key advantage of open source software is that it is drastically cheaper than proprietary software products. This is so because generally there are no upfront costs to be paid – i.e. there is no license fee (or if there is, it would be a rather minuscule amount). Unlike the proprietary software model, you do not have to pay for any additional copies or for any additional number of licensed users. You just make as many copies as you want. Therefore, OSS solutions can be a great choice for start-ups or any companies that are on a tight budget. With the right choice of OSS solutions you can often receive enterprise-level software features without having to pay a hefty price. (There is no formal restriction forbidding an end user to charge for open source software when redistributing it. However, this would make no sense due to the freedom for any recipient to redistribute the software, as one would end up charging for something that could be obtained for free just around the corner. Charging a fee would make sense for a modified work if some additional enterprise features are added on top of the open source core or if additional professional services are provided by a commercial OSS vendor).
Furthermore, with OSS solutions you are benefitting from the developments produced by a diverse and talented community of programmers from all over the world. Unlike a team of in-house developers in a corporation who are following rigid internal rules and whose work is often dictated by pre-established patterns, the community of OSS developers is better suited to unleash its creativity and artistry in an unconstrained way.
The code produced by the open source community is reliable and demonstrates high quality. Inherent in the OSS model is also the heightened security of the development process – as the source code is transparent it can be vetted after submission and also audited for any vulnerability. Since the number of eyes reviewing the code is far greater than in the case of an in-house development, it generally should be easier for any bugs and errors to be easily spotted and fixed as early as possible in the process. Moreover, it is a reputational stake for any developer in the OSS community to submit high quality, clean and reliable code as the entire process is rather transparent.
One more key advantage of OSS software is that it allows for far greater flexibility when designing your internal IT architecture as it reduces the risk of vendor lock-in. Vendor lock-in is a situation where a customer becomes dependent on a single vendor for a given product/service as the costs for switching to an alternative provider are high enough to prevent such a move. OSS products alleviate this because they are based on open standards which allow for interoperability and data portability between different solutions. Moreover, as OSS comes with the freedom for anyone to modify and redistribute the software it is highly unlikely that the availability of a function would tie a user to one single software distributor.
Finally, OSS can save you costs in one more way. It can operate on older hardware configurations far more efficiently than most proprietary software. Thus, it effectively reduces hardware costs for any enterprise, as discarded machines suddenly become useful again, and it also mitigates the need for frequent purchases of new hardware.
From a practical perspective, when reviewing contract templates prepared by the customer it is not uncommon to see broad prohibitions on the use of open source software. If you are on the vendor side, you should carefully examine those. It is certainly unwise to accept a far-reaching restriction that may even result in forbidding internal use of open source technologies when providing services to a customer. Such a provision might be even detrimental to the customer itself as the replacement of internal OSS tools with proprietary tools may result in a higher price for the vendor services. On the other hand, it would make sense for the customer to have control over the potential incorporation of OSS components into contractual deliverables, especially when the customer will have ownership of the IP rights in those deliverables. In that case the customer may require that such incorporation can only take place after prior written approval and that is certainly a reasonable protective measure in view of its interests.
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