II. What is Open Source?

There is considerable discussion about the different definitions and variations of what is generally understood as open source software, particularly because there is currently a divergence of opinion between different camps in whether one should use the terms “open source” or “free software” to define the movements implicit in the permissive distribution of software.15  This is not the place to solve this dispute, but it should be said that agreeing on the terms is of significant importance to the nascent movement.  Suffice it to say, there are different terms that can be used to describe the movement:  Free Software (“FS”), Open Source Software (“OSS”), Free Open Source Software (“FOSS”), Free Libre Open Source Software (“FLOSS”), Open Code,16 and non-proprietary software.17  The reason behind the many different terms and definitions is mostly historical, and comes from the fact that each denomination, particularly FS and OSS, have become attached with specific philosophies and ideologies, and, moreover, each of these definitions will usually inform the type of licenses used to distribute the work.18  This work will use the term “open source software” when talking specifically about the many different licenses used in software development.

In its widest possible sense, OSS is used to define a computer program that allows later modifications by the user or other developers by providing access to its source code19 through the use of a permissive license.  In this light, non-proprietary software is considered as such if it “is released with a license that would permit others to 'fork' the software and release their own modified versions without onerous restrictions, even though the copyright may remain in the hands of a single individual.  At least in theory, control has been conceded.”20

Beyond this basic definition, there are a few differences between the other terms, but they are generally referring to some core principles.  In the strictest sense, the FS concept is centred on the idea of developing programs and distributing them freely.21  Stallman defines free software as having four basic freedoms:  the freedom to run the program; the freedom to study how the program works by giving access to the source code; the freedom to redistribute copies; and the freedom to improve and distribute improvements to the public.22  As understood by the proponents of free software, programmers and other developers can charge for the software if it is their desire to do so, but the same underlying freedom behind the software must exist either if it is acquired for a fee or if it is not.  The user must still be able to have all of the freedoms described, with access to the source code as the most basic requisite.23

These freedoms are protected by the adoption of a restrictive licensing model that makes use of existing copyright legislation that guards the source code from proprietary software developers who want to copy it, adapt it and include it in their own programs.  This licensing model is exemplified in the General Public License (“GPL”).24

Open source is closely related to Free Software development, but it does contain a different emphasis about the freedoms involved.  The term open source was coined during a strategy meeting in February 1998 in Palo Alto California by a group of software developers with links to the Linux operating system.25  The need to create a new term to define this viewpoint had become evident because, until then, the prevalent way to describe all output produced by the non-proprietary approach was by using the expression “free software,” based mostly on the FS philosophy described.  It was apparent to many software developers that this movement had a tarnished reputation in the business world as a result of the more radical ideas held by people linked to the FS.  Open Source then is the opposite of “closed source,” the traditional proprietary approach to software development in the commercial world.  Closed source is software “in which the customer gets a sealed block of bits which cannot be examined, modified, or evolved.”26  The main idea behind open source is to provide software for which the source is available for examination, modification and peer-review.  The official definition of OSS came out of the original meeting, and was based on the Debian Free Software Guidelines, a licensing model that accompanies the Debian GNU/Linux system, a Linux distribution.27  This has generated an Open Source Definition (“OSD”), which includes a recommended set of clauses that an OSS license should contain.28  These licenses are exemplified by the Berkley Software Distribution (“BSD”), the Apache License and the Mozilla Public License (“MPL”).29