📖 FOSS’ killer app: Licensing innovation

3 minute read

This is an excerpt from my upcoming corporate open source strategy book, being published by Pragmatic Bookshelf in 2021. All book excerpt content is early in the development process and therefore unedited; the errors are mine alone (and will be fixed before publishing 😉).

After all these years of free and open source software (FOSS), we’re starting to take the many ways that FOSS streamlines software development for granted. One of those improvements—and perhaps one of the most under-appreciated—is the process of licensing software.

Despite just anyone being able to write a license for their works, it’s not advisable. This is one of those situations where just because someone can does not mean they should. It turns out that Words Mean Things, which is to say there’s a lot of specialised language in properly drafted licenses and should matters go to court, that judge will have certain expectations that an amateur license-drafter won’t have considered. Specialist license drafters are required, also known as IP lawyers. Yes, they’re back. We do so love our IP law in FOSS.

This is the way it was prior to the invention of free and open source software licenses. Any time someone wanted to release a piece of software, they’d either need to have their lawyers draft a new licensing agreement for it or they could just put the software out there and assume the right thing would magically happen (the YOLO licensing strategy). Each license was a lovingly hand-crafted, bespoke, artisanal piece of legal work. However fancy or effective this document, there’s no denying that creating it requires a great deal of expertise, time, and especially money. Who wants to wait and spend a lot just so they can share a piece of software? Surely there’s a better way?

FOSS licenses are that better way and are the “killer app” of free and open source software. Rather than waiting for a lawyer to draft a custom license for the software, you can select from a collection of professionally-drafted and community-accepted FOSS licenses. Instead of it taking weeks to receive a license and release the software, with FOSS licenses it can now be done if not instantaneously then at least in a matter of minutes or hours. In many cases, this could all occur without having to involve a single lawyer.

This is possible because these licenses are standardised and relatively well-understood. In the FOSS world, you can say to someone, “this project is licensed GPLv3” and most everyone will have some idea what that means with regard to the permissions and conditions related to using that FOSS project. There may sometimes be need to have a lawyer do a close reading of the license, or to consult the license steward for clarification of the intention of certain license clauses, but thanks to the standardisation these situations are special cases rather than a matter of day-to-day operation as they are with non-FOSS (proprietary) licenses. In this way, most individuals often can get by with using free and open source software projects without ever needing to consult a lawyer.

Of course, everything is a bit more complicated in a corporate setting. The need for lawyers is rather more pressing in this situation. It can be tantamount to business malpractice to operate a company without the benefit of legal counsel, especially where intellectual property matters are concerned. We’ll talk about this in detail in future chapters, but whether using or releasing software, license selection can have massive long-term impact on business strategy. While it may seem expensive now, collaborating with an IP lawyer to review or perhaps create your company’s FOSS license policies can have a large payoff down the road and is a good investment. These few hours of work can save the company from accidental license infringement, releasing critical intellectual property, or a hostile copy and relaunch (a fork) of a FOSS project the company released.

It’s impossible to estimate the amount of hours and money having a set of standardised, professionally-drafted FOSS licenses has saved people over the years. Like so many world-changing innovations, this one seems obvious in hindsight but was truly revolutionary when first introduced.

If your company would like help strategically navigating open source in a way that’ll make a positive difference to its bottom line, hire me.

The excerpt content is copyright © 2021 The Pragmatic Programmers, LLC and used with permission. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior consent of the publisher.

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