Commercialisation of Open Source

[acstewart]

Future Uses of Open Source
By Alex Stewart (acstewart81@hotmail.com)

The recent claim by SCO of Utah against computer giant IBM for $4 billion dollars has brought Open Source into the public eye and forced the radical Open Source community and others to consider the commercial aspects of their system. The results could shake up the traditional methods of creating software products in the multi-billion dollar software development industry.

1.0 Copyright and Computers

Computer programs are protected by the Copyright Act and are defined as ‘a set of instructions or statements used directly or indirectly in a computer to bring about a certain result’. These statements or instructions are generally referred to as ‘code’ and protected by the copyright act as a subset of the literary works category.

There are three types of computer code being object code, I-code and source code. Source code is the human readable syntax of a computer program and the form of coding used by programmers to create a computer program. Object code consists of strings of 1’s and 0’s created by compiling the source code and used to control the functions of the transistors in a computer processor. I-code is the intermediary code that results from converting source code to object code and is often referred to as junk code because it is not useable for any significant purpose.

The definition of computer program covers code that is used ‘directly’ or ‘indirectly’ in a computer. This definition was considered by the High Court in Powerflex as covering source code as code used indirectly in a computer and object code as code that is used directly in the computer processor to convey instructions.

Commercial computer programs are generally sold through licenses in the object code. Source code is not distributed in commercial computer programs as this would allow alteration of a product or distribution of the internal workings and functions that are used to make the product work.

The inner workings of commercial computer programs are protected from public knowledge as a result of section 21A (5) of the Copyright Act which states that conversion between object and source code are reproductions and therefore infringements of copyright. This means that a person cannot access the inner workings of a commercial computer program without infringing copyright.

2.0 What is Open Source?

Open Source is a form of computer program that allows for free distribution of source code in conjunction with object code so that the inner workings of the computer program are made publicly available. The Open Source system allows for programmers to take an Open Source work and alter it as they see fit. The copyright in Open Source systems is then made publicly available.
The legal aspect of copyright distribution of Open Source software is achieved through a GNU Public User Licence. Under the public user licence ‘source code is freely-distributed and available to the general public’.

The GNU Public User Licence states that all software based on code distributed under a GNU Public User Licence must also be available to the public under the GNU Public User Licence. On this basis the copyright is freely available to the public or alternatively a person who does not distribute their altered source code with their altered object code is liable for copyright infringement.

The main advantages of Open Source are that users have free access to software which has been worked on by various programmers from around the world and which can be altered according to the users specifications.

The disadvantages of Open Source is that although a user may charge a fee for transferring the works under the Public User Licence he or she must distribute the source code and consequentially the programming secrets that allow the computer program to bring about a certain result.

Code created under an Open Source system is not commercially viable due to the various creators of the works, the incongruent nature of the copyright ownership and the provisions of the GNL Public User Licence.

3.0 How can Open Source be used in a commercial manner?

The advantages of the Open Source system cannot be overlooked. A computer program is created by a number of different authors from all around the world which results in a product. These authors represent an untapped work force for the commercial software development market. In order to take advantage of this group it would be necessary to alter the public user licence so that copyright is stored in a single body which can then market the software to the public without giving away copies of the source code.

The proposed ‘Proprietary Open Source’ system would have to include a development phase followed by a closing and marketing phase.

The Development phase would consist of putting a program specification on the internet and making the developed source code available to programmers that enter into a ‘Proprietary Open Source’ Licence. The licence would have the following features:-

• All copyright in code created pursuant to the development of the product is assigned to a central corporation.
• The programmer enters into a confidentiality agreement that they will not distribute the code or any of the secrets behind the operation of the program.
• An overseer or administrator is appointed to collect the code that is created by the programmers and collate or organize the code as he or she sees fit.
• When the overseer considers the product has been completed he or she closes the ‘Proprietary Open Source’ session and notes the author of each line of code.
• The finished source code is then compiled into object code and marketed to the public.
• In return for the assignment of copyright the programmer receives stock in that company or royalty from each product sold in proportion to the total amount of code that they contribute to the final product.

Under the proposed licence a commercially viable product would be created from which the programmer would gain a commercial benefit in direct proportion to the amount and quality of code that they have created.

A software developer would gain an advantage from having access to the skills of thousands of programmers whilst only having to employ the overseer.

4.0 Conclusion

The Open Source system is merely an example of the creativity that may be applied to copyright licenses. The very architecture of computer systems allows for the implementation of diverse and varied licensing schemes that take advantage of the power of internet technology which will eventually lead to the commercial application of Open Source technology.